"Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit in a Kind of Boring Way Until Recently -- Since 2005"

Monday, April 30, 2012

A Quick Share from the New Yorker on Iran, Sanctions and Voting

In this week's issue of the New Yorker, there's an important piece by Laura Secor that unmasks (at least to those who haven't been willing to forthrightly acknowledge) the scope of tyranny in Iran. The PR folks at the New Yorker have sent along this description of the piece's attack on the "tragic farce of voting in Iran." After the jump, a quick description of this riveting article's highlights and the questions and challenges Secor raises.

In “Election, Monitored” (p. 48), Laura Secor travels to Tehran, where she is taken on a highly orchestrated and controlled press junket to cover Iran’s parliamentary elections, and where, when she strayed from the proscribed agenda, she was taken into custody and interrogated by Iranian officials for three hours. During the visit, Secor is taken to a presentation about Iran’s remote-controlled satellite at the Alborz Space Center, bussed to chosen polling places, and forbidden from leaving her hotel during the day, except to conduct interviews in the company of her government-approved translator. “The regime was no longer even trying to mask its coercive nature,” Secor writes. At the regime-sanctioned electoral events she attends, Secor encounters much support for the nezam—Iran’s unusual political structure, which combines a theocracy, ruled by a Supreme Leader, and a republic, with democratically elected offices and public debates. At one polling place, a mob surrounds Secor and a middle-aged man tells her, in English, that the “United States, Great Britain, Sarkozy are just lying, lying, lying.” In four previous trips to Iran, Secor writes, “the only crowds I’d attracted were of curious and friendly young people. Anti-Americanism was harder to come by here than in Europe. English speakers were exceedingly rare. Given the choreography of our bus tour, I had to wonder.” Secor manages to speak with a former Green Movement activist, Amir, who tells her that “there is a big layer of people in Iran who favor changes more radical than they would have two years ago. But the dictatorship, the censorship¬—they don’t allow us to see each other.” The problem with the Green Movement, he tells Secor “was that the goal was not to change the system. It was to change just a little part of it. And, since your horizon is not toward changing the system, you’re scared to put everything you have into it.” Under the nezam, “with its autocratic and democratic elements in perpetual tension,” Secor writes, “Iranians were neither subjects nor citizens.”

Though Secor is warned by her translator about discussing the U.S.’s sanctions against Iran, she talks to two young men employed in the energy sector about the effects of the most recent sanctions. “One of them said that, because of ﬁnancial sanctions, oil and gas projects were too costly and had to be postponed. And conditions in the private sector were about to get much worse,” Secor writes. One man tells her that “it’s going to be terrible.” Secor notices the soaring inflation that has taken place since her last visit to Tehran four years before, and a clothing vender near Vali Asr Square tells her that he knows “people who have unplugged their freezers because they are empty and they don’t have money for electricity.” Far from inciting an uprising, however, Moussa Ghaninejad, a liberal economist and the head of research at the economic newspaperDonyaye Eqtesad tells Secor that the sanctions “facilitate the position of the hard-liners, the extremists in government. I don’t know if the Western powers understand that. The sanctions justify the incompetence—the mismanagement—of this state.” Ghaninejad does not believe that the government will capitulate anything under the sanctions, either: “If pressure and the discontent of people on the street increase, the last resort for the regime will be to provoke a war with foreigners,” he tells Secor. Amir tells Secor that, unless the government changed completely, “the system could still kill you.” Secor briefly becomes ensnared in that system when she and her translator are taken off of the street and to a government building for questioning. She is stripped of her recording device and accused of being a spy. The officials question her sharply about her research on Iran’s economy, and confiscate her receipts. Their questions revealed the truth about the sanctions: “The inflation, the devaluation of currency, the coming privation of when banking and oil sanctions took full hold: this, and not even the election turnout, was what the Islamic Republic wished to hide from foreign eyes.”

In this series of posts on the law review submission process, we professors have learned a lot from several articles editors through interviews and comments. We have been (mostly) humble and have tried to learn as much as we can from this process in order to improve our submissions and get a better sense of what exactly goes on after we submit a piece and how generally we can improve the quality of our work.

But of course, we wouldn't be proper prawfs if we didn't get a bit didactic here as well. So, this post is dedicated to teaching articles editors (which I hope will be as humble as we have been) a few things we have learned over the years. As a former editor-in-chief who was heavily involved in article selections (at BYU Law in 2003), I want to share a few thoughts. My next post will be advice from two former articles editors turned prawfs.

Four tips for articles editors:

1. Try to go back to when you used to be an interesting, well-rounded person and not a law student. Now you see your parents' swimming pool as an attractive nuisance, your fifth grade class christmas party as constitutionally suspect, and every school yard fight you ever got into as a tort. This is all good and natural, but as you are evaluating articles, try to get out of your 1L frame of mind and think about things that really matter to the world that might intersect with the law.

In considering an article, think, would this be something I would see reported in a newspaper, magazine or on television? Would I want to share what I learned in this article with a friend? A law professor? Who might care about this article? Before you went to law school, you were a really bright person who thought about ideas, social problems, and various different fields. All of this is great and makes you part of a diverse law student body which can help you recognize the importance of submissions made to your law review.

In your first year of law school you've learned a few really important topics; but these topics are not necessarily the most important ones in the scheme of scholarship or to the legal world at large. Don't let law school suck the interest you may have in a wide variety of topics out of you or narrow your interests into just what we teach you in the first year. Try to think about legal problems, but also think about other unresolved or broader public policy issues and see if the articles you are examining tackle those in any significant way--or help the world think about these issues in a different, but helpful light.

True story: despite my undergraduate premed science education, my major in sociology, research and interest in Africa and Iran, I thought given my successful first year law student transformation that the most important and interesting article that I read as an editor was one about the history of the Lochner court. Not that the Lochner court is not interesting and important, but in the scheme of things, there were a lot more important topics and articles that I came across that I probably thought were not "legal" or "scholarly" enough because they were not constitutional and did not cite cases. My own perception of this Lochner article being the best thing since sliced bread was matched by my fellow articles editors who were also equally brainwashed into thinking that constitutional law was the only true law and the best sort of legal scholarship. This "con law" bias I had has also been confirmed by at least one interview in a previous post, so it is something to beware of anyway. But the overall message is, don't let your idea of good scholarship just be focused on what you learned in law school.

2. Think about whether you really understand what the article is saying. If you can't understand the article, it doesn't mean you are not smart enough. It may just be that the author was not clear enough. If on second thought, you don't actually understand the article, it is probably not as good (or well-written) as you thought it was, and it probably needs to be clarified. The best ideas--and those that end up having a lot of impact in the field are not necessarily the most complex ones. I think articles editors may sometimes not give themselves enough credit and think that they may not have to understand every piece they are publishing. Yes, a piece may be empirical or technical, but you should still be able to understand it. And you should be able to explain the core idea of the article to a friend and they should be able to understand what you are saying.

3. Look into how important the topic really is. Law prawfs may tell you that the topic they are writing about is really important; but do your own work in figuring out how important it really is. To get a sense, you can see what else has been written on the topic by scholars, how or if courts consider the issue (for instance, how often courts do courts consider this issue? Is this "huge problem" something that plagues only 10 cases a year?),, whether the data says this is important (ie how many people/cases/countries/businesses does this impact?), or whether this is a debate in common every-day discourse.

Remember that as articles editors, you help keep law discourse at a level that most people can understand--not law professors alone but lawyers, judges and interested people. If the topic does not seem interesting to large enough group of lawyers, judges, or average citizens, then it probably is not that relevant.

4. Final tip, think about how hard this law review article was to write. Often, I see articles that show an impressive amount of important analysis of statutes, regulations, involving FOIA requests, unique cases or empirical studies of large proportions that do not get the requisite attention they deserve with a favorable placement. So, I would ask law review editors to think about whether this author was the first to find an important historical document and analyze it, whether the author assembled their own nationally or internationally representative dataset, whether the author scoured through mountains of case law, whether the author used unique methods like a randomized controlled trial or qualitative interviews, or whether they just read a handful of cases really closely? A consideration of the difficulty of putting together this article is one factor that you may want to consider. If the article was laborious to write and the database difficult to assemble (and of course if factors 1-3 are met) then this is an article that will likely be extremely important to the field.

Those are my tips. I'm sure others have tips on good scholarship as well, so I look forward to hearing from you on other thoughts or tips for articles editors.

United States v. Jones and the Future of the Fourth Amendment

There has been much discussion in the news, blogosphere, and general ruminations about the Supreme Court's January opinion in United States v. Jones case (ie the GPS case that said that attaching a GPS tracker and using that devise to monitor a car is a “search” under the Fourth Amendment). Scholars have started to discuss what this case means for the future of the Fourth Amendment, the future of technology in prosecution, and the future of police detection of crime. Fascinating stuff.

For those of you interested and writing on this topic, I wanted to make you aware that the AALS Criminal Justice Section has a call for papers out to add one lucky panelist to an already impressive panel on this at the AALS meeting in January 2013. Confirmed speakers for the 2013 panel are Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Here is some more info on the panel:

Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

The call for papers requires any interested faculty of AALS member and fee-paid law schools (teaching six years or less) to submit papers. The due date is August 15, 2012 and the Criminal Justice Section Executive Committee will anonymously review all submissions. (No, we will not check your CV, a cover letter OR do a citation count).

To facilitate anonymous review, please submit papers in electronic form to Professor Giovanna Shay (giovanna.shay@law.wne.edu). The paper should have identifying information contained on a cover sheet only; the cover page will be removed before the paper is distributed for review. The cover sheet should also include the year you began law teaching and a statement that the paper has not yet received any offers of publication.

Self-Replicating Technology

Self-replicating technologies, once the subject of theory and fantasy, are now upon us. The original self-replicating machine—the living organism—has already been harnessed by biotechnology engineers and, more to the point, their lawyers. The next wave of self-replicating technologies, be they nanomedical robots or organic computers, are not far behind. Rather than triggering a “grey goo” apocalypse, these technologies are, at present, raising far more prosaic issues of intellectual property and antitrust law.

Those issues have now apparently caught the attention of the Supreme Court. A few weeks ago, the Court called for the views of the solicitor general on the certiorari petition in the case of Bowman v. Monsanto. This is the latest in a series of cases in which the Federal Circuit has addressed the application of the doctrine of patent exhaustion to the genetic engineering technology embodied in Monsanto's "Roundup-Ready" herbicide-resistant seeds. Seeds are the prototypical self-replicating technology, and a number of similar herbicide-resistant crops are in the pipeline of the largest agribusiness concerns. In each of the Roundup-Ready cases, a farmer has argued that Monsanto's patent rights do not extend to the second generation of soybeans grown from a patented first-generation seed. In each case, the Federal Circuit found for Monsanto and against the farmers.

Patent exhaustion (or "first sale") doctrine serves as a limit on patent rights, and provides that once a patentee has made an authorized sale of an embodiment of its patented invention, its patent rights with respect to that embodiment are exhausted, and the purchaser is free to use or re-sell the embodiment as it sees fit. Like analogous doctrines in copyright and trademark, it is motivated by competition concerns. Its aim is to enable the creation of downstream or secondary markets in patented articles, and to prevent patentees from using their intellectual property rights to gain market power in markets other than the market for the patented technology. When the Supreme Court last spoke on the issue, it rebuked the Federal Circuit for giving these pro-competitive policies insufficient weight. It seems to be considering an encore in the Roundup-Ready cases. For reasons I'll explain after the jump, I think that would be a mistake.

The Federal Circuit's analysis of patent exhaustion in the Roundup-Ready cases is admittedly not a model of the judicial craft. Framing the issue as a formal question whether a second-generation soybean is a different "article" than the first generation seed from which it grew, the court's main justification for its result was the bare assertion that any alternative result would "eviscerate" Monsanto's patent. But this is a question-begging explanation, and there are other, better reasons why a patentee's sale of a single embodiment of its self-replicating technology ought not to exhaust patent rights with respect to the second, third, or nth generation of the technology that is propagated from that first embodiment. Moreover, these reasons are consistent not only with the reasons for granting patent rights in the first place, but with the pro-competitive principles that justify limiting those rights through exhaustion doctrine.

To get at these reasons, I propose a thought exercise. Let's imagine that the Roundup-Ready cases came out the other way--that purchasers of Roundup-Ready seed from Monsanto were free, as a matter of patent law, to use all subsequent generations of soybeans grown from those first purchased seeds however they saw fit. What would we expect the Monsantos of the world to do? How do we believe their behavior might be influenced by this new legal framework?

One possible answer to this question is: not at all. It may be that the additional revenues to be derived from selling additional embodiments of a self-replicating technology to the same customer are trivial (perhaps due to the structure of demand), and that the prospect of any one customer re-selling a subsequent generation of the technology to another potential customer of the patentee is remote. Nanomedicine, particularly personalized nanomedicine, may one day prove that this is a possible result. But in the agriculture context, it strikes me as unlikely.

Where the technology at issue is an input for the production of a commodity, and the demand for that technology is broad and essentially undifferentiated, I would expect that the possibility of re-sale of nth generation seeds by the patentee's customers would significantly eat into the patentee's revenue stream, potentially making it impossible for the patentee to recoup the investment in research and development required to develop the technology in the first place. This is the classic free-rider problem that patent law is supposed to prevent: we preserve the incentive to engage in costly research and development by giving the inventor a limited-time monopoly. Other scholars have noted that this free-rider rationale is particularly salient for inherently self-disclosing inventions (inventions that are easy to copy once they have been introduced to the public). I would add that self-replication exacerbates the problem of self-disclosure: the patentee selling an embodiment of its invention would not only be teaching competitors how to practice the invention, it would in essence be building their factories as well.

So there are sound justifications grounded in the innovation policies underlying patent law for the Federal Circuit's rulings in the Roundup-Ready cases. But of course, patent exhaustion doctrine is concerned not only with innovation policy, but also with competition policy. This brings me back to my earlier question: how would we expect the Monsantos of the world to react to the free-rider problem if patent law did not protect them against competition from nth generation copies of their own first-generation products? I can imagine two possible strategies a technologist might pursue to circumvent the free-rider problem: contract and secrecy. And I think both of these alternatives are inferior to the patent solution crafted by the Federal Circuit on competition grounds.

Take the contract approach, which has been explicitly advocated by Yee Wah Chin, one of the attorneys representing the interests of Monsanto's farmer customers. To avoid the problem of free-riders Monsanto might, for example, restrict sales of its seeds to customers who sign a license agreement in which the customers undertake to monitor the uses of nth generation embodiments. So, a farmer might have to agree to sell his soybean crop only to buyers who have their own license agreement with Monsanto, or to Monsanto itself. Or Monsanto could include field-of-use restrictions in its licenses, as Ms. Chin proposes: "Monsanto could have licensed seedmakers to sell seed embodying Monsanto technology on condition that the second-generation seed be either consumed or sold to buyers who agree to either consume the seed or isolate that seed from other seed and sell the seed only for consumption."

This does not strike me as a pro-competitive result, for a few reasons. First, it incentivizes Monsanto to extend its influence into downstream markets--such as the market for commodity soybeans and their derivative products--in ways that it would have little incentive for under the Federal Circuit's approach. This downstream market creep is precisely the type of expansion of patent rights that exhaustion doctrine is supposed to prevent, out of fear that the patentee's interests are not likely to be consistent with the efficient functioning of those downstream markets. Second, and perhaps more importantly, forcing Monsanto to look to contract rights to protect its investment in research and development shifts the costs of monitoring and enforcing the Roundup-Ready patents from Monsanto itself onto its customers, who are likely to face higher monitoring costs.

We must remember, Monsanto's customers are largely farmers, who lack Monsanto's economies of scale, its greater expertise with its own technology, and its understanding of the functioning of the markets for that technology. Moreover, shifting enforcement responsibility from the patentee to its customers is likely to create agency costs where they would not otherwise exist. A farmer who is paying Monsanto a premium for Roundup-Ready seeds probably has far weaker incentives to vigorously monitor for violation of Monsanto's license terms than does Monsanto itself, which is reaping the premium. Finally, in the event that a customer breaches these monitoring obligations, either maliciously or negligently, Monsanto's technology could fall into the hands of a competitor who is not in privity of contract with Monsanto and thus (absent any unfair competition type of claim) would be free to use the nth generation seed (in which Monsanto's patent rights are exhausted) to compete with Monsanto. An individual farmer is likely to be judgment-proof in the face of the claims Monsanto might make should such a competitive threat emerge outside the reach of its licensing provisions, which once again leads us to the original problem: how would we expect Monsanto to respond to this risk of free-riding?

This brings me to the last alternative to the Federal Circuit's solution in the Roundup-Ready cases: secrecy. Monsanto might seek to prevent free-riding by refusing to release its technology to public view, and relying on trade secret protection to protect against free-riding. But in order to preserve its secret (a prerequisite of trade secret protection), Monsanto would have to ensure that nothing it released into the market disclosed its genetic technology. As I noted above, self-replication can be seen as a heightened form of self-disclosure, and so this type of secrecy would be fairly hard to maintain. Indeed, I think the only plausible way of doing so would be to pursue a course of comprehensive vertical integration. Monsanto would not only have to be in the business of propagating seeds, but also in the business of cultivating and harvesting soybeans, and processing them into useful products (oil, animal feed, industrial adhesives, tofu, you name it) that do not reveal the genetic material at the core of Monsanto's invention. Even if this were technically possible (a big if), the effect on all sorts of markets, both for inputs and outputs of the soybean market, is likely to be catastrophically anti-competitive. Where the alternative is such drastic shocks to competition in the market for, e.g., miso paste, soy-fed livestock, and arable land, the Federal Circuit's decisions in the Roundup-Ready cases start to look surprisingly pro-competitive.

The big question in my mind, then, is not whether the Federal Circuit's reached the right result in the Roundup-Ready cases. Given the factual setting of those cases, I think the answer to that question is a relatively uncontroversial yes. The real question, to me, is whether the same holds true for self-replicating technologies other than seeds for agricultural commodities. I already noted above one type of self-replicating technology--personalized nanomedicine--that may not present the same incentives for patentees, their customers, and their competitors, as do herbicide-resistant soybeans. Given how little we can presume to know about the future development of other self-replicating technologies, it is likely unwise to try to set a rule today to govern the rights of downstream users for all such technologies that may arise tomorrow. And for this reason alone, it may be worth getting some discussion of the issue from the Supreme Court, which seems particularly sensitive (almost to a fault) to the hazards of establishing brittle legal rules to govern the unknown future of technology. If the analysis that emerges is more substantive and functionally-minded than the under-argued, formalist analysis of the Federal Circuit (admittedly, another big if), I would be happy to see the Court take the case, if only to put the type of issues I've discussed in this post on the table.

For me, these cases brought to mind Chief Justice Roberts' famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken. I recognized that a rigorous and sophisticated empirical study would be very valuable, and could conclusively prove or refute my hypothesis. Instead of that, though, I decided to do some casual noodling, which I report here.

I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails. And although this group skews toward seniority, more are in their 30s, 40s and 50s (11) than are in their 60s and 70s (10), which means that most, or maybe all, spent the bulk of their careers in the era dominated by fancypants scholarship, rather than, say, treatisewriting and descriptive work. Judge Harry Edwards, for example, wrote his celebrated article about the irrelevance of legal scholarship in 1992, and he described a problem with legal scholarship he had observed "for some time now", not a brand new development.

By my count, 15 out of the 21 have had at least one article one book or article cited in at least one opinion in the U.S. Supreme Court. It seems to me that having an article cited in the Court demonstrates that a scholar's work is useful to the legal system. Six were not cited in the Supreme Court--I won't name names, because I might have missed something in my searches. But each of those six were cited in lower federal courts and state appellate courts from dozens to hundreds of times. Because lower courts are more constrained, a citation there is, if anything, even more suggestive of useful work about conventional legal subjects than is a citation in the Supreme Court. And while serving as law professors, several of those six litigated in the Supreme Court either as counsel or amicus curiae. They also have performed other major service in the legal system, with national bar groups or state or federal government commissions. While many of them have written, on occasion or regularly, "high theory" articles, not a single one of them could fairly be regarded as ethereal or irrelevant.

These folks, at least, not only are popular among other academics, but are also taken seriously by, and are influential in, courts and in other aspects of the legal system as well. They do law in the same sense that the Supreme Court does law. The tentative conclusion I draw is the umpire made a bad call this time. Surely there is a bottom fraction of the professoriate, and we--I mean they--write articles few scholars or judges find useful, both because of the topics chosen and their execution. But good criminal scholars, because of their intellectual ability, diligence and the relevance of their subjects, are read and engaged by both courts and other scholars.

Sunday, April 29, 2012

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer -- as a moment for loose impromptu brilliance. And in his exceptional piece, "Constitutional Cadenzas," Dan Farber argued that there are sections of the Constitution which contain cadenzas -- "instructions for the interpreter to improvise on the Constitution's grand themes." Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment's Privileges or Immunities Clause as such sections. "[B]oth of these constitutional provisions," he wrote, "call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration." Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation -- specifically, "transnational legal sources" and "contemporary social consensus" -- the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius. The performer of the cadenza may know something about previous performers -- he may perhaps take notice of past interpretations -- but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind -- the appoggiatura. The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody. In Italian, 'un appoggio' is a support or something to lean on in a moment of weakness or indecision. Like the cadenza, the appoggiatura is an embellishment -- it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example. But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will. The appoggiatura cannot stray very far at all from the melody -- it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after. It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura? There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation. Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution. Each has an interpretive role to play. Madison put it this way in Federalist 49:

The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers . . . .

As a concept in constitutional interpretation, departmentalism has much to commend it, but it seems to me to depend heavily on the coordinate branches knowing a great deal about the Constitution and about the interpretations of other branches. In this day and age, that means deep knowledge of Supreme Court doctrine. A successful departmentalist will give due regard to the interpretations of coordinate branches; he will not be bound by those interpretations and he will be at liberty to deviate from them if he wishes. If he does wish to deviate, however, he will do so modestly and gradually, using existing coordinate interpretations as support structures for his new interpretation. This will give the appearance of a unified front, all the while indicating some alteration to the close listener.

An example. Here is a somewhat dispiriting exchange between Congressman Trey Gowdy and Secretary of Health and Human Services Kathleen Sebelius about the constitutionality of what is known about town as “the HHS Mandate,” a set of regulations which would, as presently constituted, require many employers who provide health insurance to their employees to include contraceptive and abortifacient products as part of their plans. The mandate has elicited objections from religious employers who claim that it will violate their constitutional free exercise rights, among others.

The unfortunate thing about the exchange in the hearing is that it is obvious that neither Congressman Gowdy, who is a lawyer, nor Secretary Sebelius, who is not, has a clear idea about what the current law of free exercise is. Congressman Gowdy talks about balancing tests in constitutional law, and though it is true that constitutional law is rife with balancing tests, none of these tests applies to the Free Exercise Clause. He also raises Wisconsin v. Yoder (which does not represent the current test), Wooley v. Maynard (which is a compelled speech case), and Church of the Lukumi Babalu Aye v. City of Hialeah (which is not about balancing, but about laws of general applicability). Secretary Sebelius admits frankly that she is not a lawyer, and relied on oral communications about the mandate’s constitutionality. Nobody has any idea what the law is, even in a hearing ostensibly devoted, at least in part, to constitutional law.

But I think the exchange is only somewhat, rather than entirely, dispiriting, because it seems to me to be at least something of an effort (albeit a feeble one) to exercise what is an utterly atrophied departmentalist muscle.

In light of this state of profound disuse, in order for departmentalism to be at all plausible, the idea of a constitutional appoggiatura might be helpful. Any departmentalist move, in order to gain any sort of traction, should use existing Supreme Court interpretations as supports – as melodies which must be known by heart and upon which one relies heavily. Limited departmentalist departures will be possible from these melodies, but they will need to be minor grace notes up or down. With time they may become slightly longer in duration, so much so that they may sound quite different from the original melody. But the melody will always be discernible, and the themes of the original will be repeated over and again, though the continuing exercise of a gradualist departmentalism will change the sound, by stages, over time.

"Paganini non ripete," the old master used to say. But through dependence and repetition, the constitutional appoggiatura may work imperceptible change.

Saturday, April 28, 2012

Community does L&O

I am a big fan of the show Community, which last week did a spot-on parody of Law & Order. Two highlights:

First, a legal note. The producers had to figure out how much of what they were doing constituted fair use and what they had to pay royalties for. Probably to avoid a fight, they paid to use the "chung-chung." Was that necessary?

Second, I wanted to flag a part of the courtroom scene. Annie, playing the attractive young brunette ADA, is cross-examining the "defendant" and nails the L&O meme in which the attorney, in the guise of asking a question, launches into an inappropriate (usually sanctionable, grounds-for-a-mistrial) speech, then says "withdrawn" when there is an objection, as if that makes it OK. Here, Annie didn't even bother waiting for an objection:

Is that why you hit your wife? Withdrawn! Is that why you smoke pot and pop pills? Withdrawn! Are you a virgin? Withdrawn!

How Would the House be Apportioned If a Moon-Sized Asteroid Wiped out the U.S. West of the Mississippi?

Undoubtedly, in an extreme emergency, such as, say, a full scale nuclear war or a catastrophic impact event, some aspects of federalism and separation of powers would have to change. For example, the rule that each state gets two senators and at least one representative might have to be reconsidered if the state was completely destroyed in a natural disaster. But I am not sure how much intellectual energy should be devoted to questions of this nature. Which is why I raised an eyebrow after reading Justice Kennedy's question in Arizona v. United States.

He asked the Solicitor General to assume a situationin which federal authorities acknowledged that they could not enforce federal immigration law because they did not have the resources, and "that the State of Arizona has a massive emergency, with social disruption, economic disruption, people leaving the State because of a flood of immigrants. . . . Does that give the State of Arizona any powers or authority or legitimate concerns that any other State would not have?"

Perhaps Justice Kennedy is considering voting to strike down some or all of SB1070 while leaving the door open for expanded state powers in dire circumstances. But why speculate about such situations when they have never happened? Yes, if every state except Montana is vaporized by starships from Alpha Centauri, the island nation of Montana's right to make a treaty almost certainly springs into being notwithstanding the Constitution. But we do not need a Supreme Court to tell us that, nor is that the most urgent question under those circumstances.

Another possibility, which I hope and suspect is not the case, is that Justice Kennedy is considering invoking an emergency exception in the present situation. The facts just do not support it. Of course, the United States is putting unprecedented resources into immigration enforcement, and they are working. As Pew reported, before SB1070 was passed, net immigration from Mexico had slowed or reversed. The Cato Institute reports that immigration is not associated with increased crime. And the CBO estimated that the net cost of undocumented immigration to states and localities is "most likely modest." If an emergency exeption to the Constitution applied whenever a state judged, on its own, that heightened measures were warranted, the Constitution would be meaningless. States almost always believe that their actions respond to emergencies or are necessary to head off emergencies down the road.

A final reason that the question rings false is that the Immigration and Nationality Act already addresses this precise situation: 8 U.S.C. 1103(a)(10) provides: " In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize" state officers to enforce federal immigration law. If an emergency arises, this and a number of other, existing parts of the INA allow for use of state resources under federal supervision.

The constitutional question still exists, I suppose, because perhaps an additional fact will be present: 1) there is an actual emergency, 2) the federal government admits that it wants to enforce the law but does not have the resources, as Justice kennedy hypothesized, and 3) in spite of 2), the federal government refuses to allow the state to cooperatively enforce federal immigration law. But this seems like another science-fiction question. I am hard-pressed to think of an example where the federal government refused in an emergency to let a state use its own resouces to help itself, even in a n area of predomnant federal authority. Can anyone think of one?

Friday, April 27, 2012

Constitutional Authority Statements in Congress

Professor Hanah Metchis Volokh's paper on this topic is well worth reading. My favorite fact: In response to a rule requiring House members to file a Congressional Authority Statement (CAS) explaining "the power or powers granted to Congress in the Constitution to enact the bill", over 10% of the statements cite, without further elaboration or specificity, "Article I", which of course creates and describes Congress and its powers and procedures, "Article I, Section 1," vesting the federal legislative power in Congress, or "Article I, Section 8", which lists all of the powers of Congress, begging the question "which one did you mean?" Quite rightly, Professor Volokh argues that a CAS, repreenting, as it does, the views of a single legislator (and not being part of the bill itself), should have little or no weight as legislative history. Therefore, even if a CAS fails to identify the right power, if the law is in fact within the power of Congress, the mistaken statement should not invalidate the law. The paper notes that the CAS requirement post-dates the health care law, so there is no CAS on that.

Yale Law Women's Eye Opening "Speak Up" Report

I have just finished reading through the Yale Law Women's brand new report on the status of male and female law students at Yale. The "Speak Up" report revisits an important topic that the same organization had reported on in 2002 and assesses progress over the last decade. The phrase "must read" is horribly over-used, but I genuinely believe that every professor and administrator in the legal academy ought to print out this report and read it over the weekend. The students at Yale who worked on the report should be commended for gathering a great deal of illuminating quantitative and qualitative data to assess the experiences of students and faculty.

There are a bunch of different findings that could be highlighted, so I want to comment briefly on a few that jumped out at me. First, the disparities between men and women speaking up in class remain substantial. I suspect New Haven is hardly unique in that regard. The Speak Up Report somewhat sheepishly mentions an obvious solution, which seems to have substantial majority support from the Yale students surveyed: Cold-calling via the Socratic method, especially what the Report calls "warm-hearted cold calling." A great virtue of cold-calling is that everybody speaks. While the report details various sensible steps that can encourage more women to speak up in class, it seems nothing will work better than having the majority of the class time be devoted to Socratic discussion rather than lecture followed by Q & A from volunteers. As someone who has used [hopefully] "warm-hearted cold calling" for a decade, it's my impression that the comments of students who never raise their hands are, on average, better than the comments of students who regularly raise their hands. Talking in class, and being peppered with hard but fair questions from a professor, are big parts of the education that students are paying for. And I think that perk ought to be spread as equally as possible.

Some of the other key findings report similar levels of disatisfaction among male and female students. A second eye opener is the report's discussion of the small group experience. Every Yale 1L take one substantive fall semester class in a very small section. It is a big selling point for Yale. As a Deputy Dean who helps build Chicago's teaching schedule, I can tell you that Yale's resource investment in its small groups must be enormous. Even wealthy schools like ours would have a hard time duplicating what Yale does without either growing the faculty substantially or relying very heavily on adjuncts to teach 2Ls and 3Ls. Yet, for all this investment, Yale's results are disappointing. Less than half of Yale students describe their small-group experience as a positive one. I don't know what to make of this finding. Maybe Yale students' expectations are unrealistically high? Maybe Yale doesn't have the right faculty teaching small groups? Maybe the small-group experience would add more value in the 2L or 3L year? The student response rate was pretty darn high, so I really wonder what is going on. The report also concludes that the faculty and administration at Yale do not reward good teaching, and if true, then that could explain the problem. For what it's worth, my own small group experience at Yale in 1997 (with Peter Schuck) was wonderful, and Peter became an extremely generous mentor through my three years at Yale and thereafter.

That brings me to point three: mentoring. There might not be enough Peter Schucks to go around. Neither female nor male students seem satisfied, even attending the law school that can lavish more faculty resources on each student than any otherschool. 51% of Yale law students report that they feel no one on the Yale faculty is a mentor to them. That is depressing. 72% of Yale law students report dissatisfaction with faculty mentorship. That is more depressing. To be sure, comparable figures may be even higher at some other elite schools that haven't bothered to survey their students on these questions. But the reported figure suggests that official, sunnier accounts of the student experience at Yale, in which one-on-one faculty mentors are "offered to every student at Yale as a matter of course" and "all students get to know faculty very well," are more aspiration than reality. I don't mean to pick on Yale. It is admirable that people within the school are forthrightly confronting what it would need to do to improve the student experience. And I would be surprised if the faculty weren't already giving these issues a great deal of thought. Hopefully creative action will follow. Yale has led the legal profession on many vital issues in the past, and it would be nice to see the law school lead on the issues of instruction and student mentorship.

I am sure that every law school confronts many of the same issues that were raised in the Speak Up report. I am curious about what the comparable data would look like at my own school and have asked my administrative colleagues today whether we can conduct similar surveys of our own students and faculty. In the mean time, I think it will be useful to talk about what we ought to infer as we attempt to generalize from the Yale report. Is it that if the ultimate "haves" school has these serious problems, then they must be even more pervasive among the "have nots"? Or is it something about the faculty culture or the expectations of students at the "haves" schools that makes these sorts of problems less pervasive at schools with fewer resources? Or is this an issue that is a bigger problem at Yale than, say, the comparably sized schools like Stanford, Chicago, and Cornell? Most importantly, what can we as legal educators do to close the mentorship gap? And, since the Speak Up Report makes as many recommendations to students as it does to faculty about how to solve these problems, how can we get as many students as possible to help us help them? Downloading the report is a good place to start.

Compassionate Infringement

In IP3, Madhavi Sunder considered the cultural impact of intelletual property rights on those in need. Her piece refers to "compassionate uses" of patented pharmaceuticals to distribute to those unable to afford them. As she describes, such uses "﻿would permit countries ﻿where urgently needed medicines are unaffordable at market prices to temporarily distribute these medicines at cost for ﻿'compassionate use.'"

This morning's The New York Times describes infringement of an entirely different kind. There, a 92-year-old copyist known as "Big Hy" likely spent $30,000 of his own funds to ship bootlegged DVD's to miliatary service personnnel overseas. According to the piece, "in black grandpa shoes and blue suspenders that hoisted his trousers up to his sternum," Hy ripped bootleg films, placed them in boxes, and shipped at least some of them to an Army Chaplain, because they are (apparently) part of an effective distribution system. Once received, members of the troops would watch them, sometimes at the same time that the films were being released in theaters here.

A spokesperson for the Motion Picture Association of America appeared to acknowledge that "we produce can bring some enjoyment to them while they are away from home." This rather unaggressive stance is unusual for that organization, which is known to advocate strong copyright enforcement. Whether this response arises from compassion or a sophisticated understanding of press relations, it is good to see the organization acknowledge uses beyond those categorically permitted by the law.

Scalia on civil procedure

Yesterday, Justices Scalia, Ginsburg, and Alito attended the annual end-of-argument reception at Georgetown Law Center's Supreme Court Institute, which also included a tribute to Justice Ginsburg. (H/T: Thomas E. Baker). On his colleague (who used to teach Civ Pro), Scalia had this to say:

She can be tough. You don't want to have a civil procedure matter" before Ginsburg "in which you are wrong." With a smile, he then shrugged and said to the law school audience, "But who cares about civil procedure?"

Freedom of speech and the politics of the underlying speech

Guesting at CoOp, Erica Goldberg has a thoughtful post describing how "disheartened" she is by the confusion of protection of speech with the political views expressed. She relates her experience working at the Foundation for Individual Rights in Education ("FIRE"), a group often viewed as right-wing because many of the high-profile cases it has taken on has involved either speech by conservative groups or non-partisan speech that offends liberal sensibilities (e.g., a case involving misogynist chants as part of fraternity initiation). Erica concludes with a nice line about the ease with which the principle of free speech gets conflated with the speech at issue: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus."

It's a nice commentary and worth a read. I want to add some thoughts on the margins.

First,this is not a new phenomenon. The ACLU was labeled left-wing (if not outright "Commie" and "Un-American" for its, in retrospect, tepid support for communist speech). And the ACLU became the poster-child for America-hating liberals during the flag-burning debates. That the ACLU also represented the Skokie Nazis just got lost in the noise of politics. The ACLU was a bunch of liberals, end of story.

Erica illustrates the different perspective on Jack Balkin's "ideological drift" argument that I have argued for in the past: It's not that conservatives have discovered free speech as a principle, but that many liberal groups have abandoned it (or at least made its position less-absolute) in favor of other principles. The problem (from the perspective of many) with the ACLU is that it has taken on other issues besides free speech, notably equality for women and GLBT, decidedly liberal positions; this necessarily weakened its unwavering support for some speech that had the purpose or effect of denying equality to those groups. So perhaps Erica is correct that the ACLU would not apply its lower standard for harassment to liberal groups, but that is because such speech does not interfere with the organization's other, non-speech positions.

Finally, my conclusion from Erica's last sentence (quoted above) is that we're never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker. For example, last year in Snyder v. Phelps, Chief Justice Roberts closed this way: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . ."

If that but is necessary in a judicial opinion, it always is going to be present and necessary in public debate.

Update: Will Creeley, FIRE's Director of Legal and Public Advocacy (Erica's former colleague), writes to point me to a YouTube link devoted to the Skokie case, featuring a 1977 interview with David Hamlin, the Executive Director of the Illinois ACLU. Will highlights the following quotation:

Most of the causes we represent are unpopular, at least with someone... In one sense, everything we do is unpopular, in that not everyone agrees with everything we do... We continue to represent the rights of even the most unpopular individuals."

One of the difficulties the ACLU has always had is a kind of instant association with the client... Every time we represent someone, people assume that we are supporting what they say, and not their right to say it.

Thursday, April 26, 2012

Law and Grace and Bishop Jenky

My friends at Mirror of Justice have had a host of interesting posts lately on a variety of issues, many of them involving the recent statement on religious freedom of the USCCB, the question of "who is the Church," and the recent homily by Bishop Jenky, in which the Bishop said, inter alia:

Hitler and Stalin, at their better moments, would just barely tolerate some churches remaining open, but would not tolerate any competition with the state in education, social services, and health care.

In clear violation of our First Amendment rights, Barack Obama – with his radical, pro abortion and extreme secularist agenda, now seems intent on following a similar path.

MoJ has posted a student comment (I emphasize "student"; I don't want to be patronizing about it, but although I'm critical of the post I don't want this to be an arena for nasty counter-comments) defending the homily. It reads, in part:

I do venture to suggest that perhaps Jenky’s words are true. . . . Serious Catholics ought to take Jenky’s suggestions seriously. Does our culture and political order affirm the transcendent dignity of the human person? Or is Jenky right to discern in recent governmental trends indications of a nascent “culture and praxis of totalitarianism”? The bishop by no means intends insensitivity towards victims of Stalin or Hitler’s abominable practices. If anything, by drawing such parallels he intends to generate a greater sensitivity towards the millions of innocent victims of abortion in America—that which has come to be known in some circles as the “American Holocaust.” . . . Notre Dame, as a Catholic university, should follow his example in standing up for religious freedom and against the insidious soft despotism of relativism that pervades mainstream culture. Perhaps if more members of the clergy and scholarly communities had issued “incendiary statements” like this one, some of the gravest atrocities of the past century might have been preempted by a bolder and more conscientious citizenry.

Against these statements, allow me to counterpose a different vision. It's not my own. It comes from this month's Virginia Law Review, which has published a speech by the late William Stuntz titled Law and Grace. Looking back on the connection between the culture war and the wars on drugs and crime, which he thinks claimed many unintended victims and did not improve matters any, he wonders whether "we might have fought a different kind of culture war, and a different kind of crime war--wars that were less warlike, with many fewer casualties." Comparing other culture wars to the civil rights struggle, he writes:

[Martin Luther] King fought and bled and died for the right to have relationship with those who refused relationship with him. He did not seek to punish, though he had every excuse and every right to seek precisely that. He wanted his enemies’ embrace. It’s an utterly captivating vision. And it changed the culture. . . .

By and large, law can do three things: it can punish wrongdoing; it can relieve suffering; and it can promote and protect and, some-times, create relationship. The culture wars of the early and late twentieth century focused on the first of those three roles. King’s culture war focused on the second and third. King got it right, and my generation of American Protestants got it badly wrong. . . .

I believe King’s movement was America’s Good Culture War, one that was fought as such battles ought to be: aggressively and passionately and with deep commitment to principle, and yet also with love for those with whom the movement did battle. Call it the marriage of law and grace. Legal change helped produce social and cultural change—not by locking up evildoers, but by building the beginnings of an integrated national community. Abraham Lincoln, the historical leader whom King most resembles, would have understood. Lincoln fought a terribly bloody war—and yet, as hard as he fought, Lincoln could not bring himself to hate those he fought. They are our countrymen, he liked to say; we should approach them “[w]ith malice toward none; with charity for all”—famous words that define the spirit of the one who spoke them. That spirit, and King’s spirit, have been too little evident in the culture wars of the recent past.

Some might wish for an American future free of culture wars. I do not; I think these battles are worth fighting. But I do wish for good wars: the kind King fought—the kind in which we love our enemies, and fight for the chance to embrace them.

I appreciate that these are romantic words. I also appreciate that loving one's adversaries doesn't mean not opposing them. And I can appreciate just how demanding this sort of love is. (A good deal more demanding, in fact, than any of the demands Bishop Jenky makes on his flock in his homily; calling for "heroism," or for contempt for "Hollywood" and "the media," is easy, if not lazy.) For one who believes that abortion is murder, how can one not consider oneself to be in a war? (And why not, then, fight it as a genuine war?) For one who believes that certain fundamental rights are an absolute part of human dignity, how can one not resolutely and angrily oppose those who would deny the basic right to marry the worthy person whom one loves? (And why not, then, seek to circumscribe or vanquish the rights of those institutions that oppose it?) And I further note that Stuntz quite rightly said that some battles are worth fighting.

But I still think the best answer one might offer to the student commenter (and to those with similar views across a wide political spectrum) is the one Stuntz offers. You can't build a world of just and loving relations with others unless you are willing to have and seek loving relationships. The capacity for that seems sadly lacking in our culture these days, in many places.

When Should (Law) Faculties Speak Out Collectively?

At CoOp, Sarah Waldeck has an interesting post* asking "when—if ever—[ ]law faculties have a responsibility to take public positions on matters facing the electorate." It's occasioned by a vote of the William Mitchell faculty opposing a state constitutional initiative banning same-sex marriage. The resolution argues that: 1) the amendment is in conflict with the school's antidiscrimination policy and could have a negative impact on the school's ability to attract and retain members of its community; 2) the policy itself is discriminatory and wrong; and 3) limitations on state rights should not be constitutionally fixed.

The comments on Sarah's post are very interesting.

A number of individuals there--mostly the sorts of questionable characters I tend to agree with on such issues--champion a position taken on such issues by Harry Kalven:

[A] good university, like Socrates, will be upsetting. The instrument of dissent and criticism is the individual faculty member of the individual student. The university is the home and sponsor of critics; it is not itself the critic. ….

[The university] cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues. ....

From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and values. … These extraordinary instances apart, there emerges, as we see it, a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day.

I am broadly sympathetic to those conclusions. I would put it in these terms. To the extent that a faculty, whether of a law school or a university in general, is going to take a public and collective position on any issues, it should do so only to the extent that it is speaking out of particular expertise and/or unique concerns. If I may offer up yet another in the series of quotes that will be held against me at my hypothetical judicial confirmation hearings, general questions of justice and morality are not among the issues on which university faculties as a collective body, including law faculties, have any special expertise. For such issues, civic and professional engagement should be on an individual basis.

If I may offer a couple of caveats and a personal example. It seems to me that if a university faculty believes that particular laws or public policies would interfere with its mission, that is an appropriate occasion for speaking out collectively; Kalven himself acknowledges this, although arguing for a presumption against doing so. That suggests to me, however, that the collective statement should be confined to those issues and reasons as to which it has particular expertise or concerns, as opposed to broader moral statements about the policy. This will of course generally deprive the statement of much of its emotional power, and of some of the personal satisfaction that some members of the institution might have taken in making a more sweeping statement (although a drier and more confined statement might also be more effective as a matter of persuasion). So be it.

Institutional pluralist that I am, I also acknowledge that some faculties, including but not limited to those of religiously affilliated schools, might craft a mission that takes broader positions on moral issues, and so might feel freer or more obliged to speak out on such issues. Although I don't share such a vision of the university's mission as a general rule, I can accept some variety on this point, provided that those faculties are willing to be judged for that mission and criticized for failing to live up to it--if, for instance, they continue gladly to receive funding from institutions they have collectively condemned.

Judged by that standard, and assuming that William Mitchell's mission is reasonably conventional in its basic points, I think it was entitled to make its first argument, about the effect of such a law on the school itself. I think the Kalvenesque position offered above suggests it should have refrained from a collective statement about arguments two and three, which addressed general questions of justice and public policy. Your mileage, of course, may vary.

I had some personal experience with this lately. I have been a public critic of Alabama's immigration law, the prior HB 56, currently undergoing revision. Last week, the University of Alabama's Faculty Senate, of which I'm a member, voted for a resolution criticizing the prior bill and urging significant changes during the revision process. In addition to making particular statements about how the bill had affected the university itself, it added some moral condemnations of the bill, including the statement that the prior bill "diminish[ed] the human dignity of all it [ ] intended to impact." I voted against the resolution. Granted that a faculty senate resolution and five dollars may get you a cup of coffee, but I don't think university faculties as a body have any special insight into human dignity, and I think they should refrain from speaking collectively on such matters unless and until they do. If the resolution had limited itself to criticisms of the bill for its effect on the university community and/or on academic freedom, I would likely have voted for it.

The timing of fall submissions remains a bit of a mystery to me as it is to many of you who have written me. It is hard to know when to submit, when journals begin to fill up, and whether there are as many offers made in the fall cycle. Unfortunately, I do not have answers to most of these questions. I will try to collect some information this upcoming year and post on it in the fall but it will be too late for many of you who are planning on submitting in the fall. So, this post is an attempt to put what little data I have out there in case it is of any help to those of you who plan to submit in the fall.

So, the chart below reflects the submissions received by BYU Law Review between August 1 and 23.

Unfortunately, the articles were put on hold at that point since offers were made and accepted and all of the spots filled by that time. I'm sure there were plenty of articles submitted after August 23 and BYU may be an outlier (and make decisions earlier than other law reviews) but for what it is worth, here are some graphs on the 2011 fall cycle.

So, after seeing these numbers I naturally wondered how they compared with the February 2012 numbers that I revealed in an earlier post. I've done a few different comparisons below in three different periods of 23 days in February and August (1-23). Again, I wish I could do a full comparison for the entire period, but this is all I have. Frankly, I was surprised at how many articles were submitted in the fall. I had always thought that there were much fewer submissions in the Fall (and that may still be the case since March could be a much heavier month of submission than February) but still, there are a substantial number of articles submitted in the Fall. I would be interested to know if the number of articles submitted matches the number of offers given and whether people have better chances of receiving an offer (or an offer they like) in the fall or winter submision cycle.

So, that's all on timing until the fall I'm afraid. Just a couple more posts in this series on best practices for law review editors . . .

Who Are You Wearing? Part 2: The Law

In an earlier post, I flagged the high stakes surrounding intellectual property disputes over luxury goods, but questioned the rationale for making a federal case out of, say, a fake purse. In this post, I'll be examining the legal regime that allows such a case to be made.

That regime, in the United States at least, comprises a particular sub-field of federal trademark law. Section 43(a) of the Lanham Act provides the primary statutory authority for the federal law of trademark infringement and unfair competition. It imposes civil liability against any person who uses a trademark in commerce that "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods...." But if you know the market for knock-off luxury goods, you know that the people who buy them almost always know full well that they're buying fakes. Nobody thinks the Rolex he bought for $10 in Times Square has any actual relationship to the Rolex company, nor does anybody think the vinyl Kelly Bag she bought for $20 on Canal Street has any relationship to the house of Hermès. So what is the "confusion, or... mistake, or... dece[ption]" that provides the basis for trademark liability against the makers and sellers of such knock-offs?

The answer that courts have come up with has come to be known as "post-sale confusion." Luxury knock-offs do not infringe the luxury house's trademark because of their effect on the purchaser of the knock-offs, but because of their effect on people who observe that purchaser consuming the product after it has been purchased. Such observers, the theory goes, will see the non-confused purchaser consuming the defendant's product, but mistake it for the plaintiff's product due to the similarity of the products' trademarks or overall designs. This "mistake" is the hook on which trademark liability hangs in the luxury knock-off arena, and the question I'm interested is why this type of mistake is something the federal government ought to concern itself with.

What is the social or moral ill that results if I mistakenly believe that a woman walking down Fifth Avenue is carrying an authentic Louis Vuitton purse when in fact she is carrying a cheap imitation? Trademark law is often thought to be designed to prevent producers from misleading consumers as to unobservable product qualities, either to lower consumers' search costs (as Judge Posner and Professor Landes have famously argued) or out of respect for consumers' autonomy (as I argue in a forthcoming piece in the Stanford Law Review). But, again, the purchasers of luxury knock-offs know exactly what they're buying; they aren't being deceived at all. So what gives? Why should we make post-sale confusion actionable, let alone criminal?

Once again, I'll throw this open to commenters before revealing my own thoughts in a future post; those who can't wait for the reveal can read my take in the latest issue of the Minnesota Law Review.

Wednesday, April 25, 2012

Underneath the Law Review Submission Process: Part VIII Memes

A little light hearted humor for you folks in my next post on the law review submission process (more serious ones coming in the future). For those of you who haven't heard of this, a meme is a popular video/picture or character that is passed on over the internet. These can become viral. A great website helps you to generate your own. My students came up with some hilarious criminal procedure ones studying for finals this year.

Anyway, here are my own on the submission process:

And one based on the comments on my last post about being honest in your expedited reviews:

For those of you who didn't read my last post or the comments, TJ (in a comment) pointed out that the chances of being caught for faking expedites is so low that people--particularly those without letterhead or at lower ranked schools may have the incentive to fake an expedite. And he calculates, if they do, they may actually be 10 times better off. Very interesting (and disconcerting).

In my last post I talked about honesty in expedites as one of a few tips for good expedites. From the comments though, it seems that some people think this could be more of a problem that needs to be addressed broadly. Unlike several of the other problems identified about the law review process (potentially inexperienced editors, rush of submission timing, use of proxies rather than blind review to evaluate good scholarship), the solution to fake expedites is a relatively easy fix.

Several of the solutions articulated in comments on my last post could work. One approach would be to have all journals require a forwarded offer email as proof for an expedite. Alternatively, if the offer was received through a call (not an email), the author could write an email message with the name, time of call and the name of the articles editor, contact info, and journal who gave the offer. Another option that would be much easier would be to require articles editor name and phone number or email in an expedite done through Expresso (similarly to how it now requires the name of the journal you received an offer from).

I'm not sure any of this is necessary, because I'm not sure how rampant this kind of behavior is among authors (I'm with Brian Galle on thinking that if you are a lawyer or law professor you signed a few really important oaths that should be a deterrent enough to you to not lie/cheat) but if you all think it is a big enough worry, it may be worth writing Expresso about or for us to encourage our law journals to adopt such a process.

Some Modest Predictions on Severability

The Court’s decision on the severability of the individual mandate may be the aspect of the PPACA litigation that is most difficult to predict. If the Court holds that the individual mandate is constitutional, then severability won’t be an issue in the first place. If severability does arise, whether and how the Court will sever the mandate is uncertain. In part, this is because of problems with severability doctrine itself. Notwithstanding over a century of cases on the issue, the Court has had a hard time settling upon a definitive severability test. Sometimes the emphasis has been on legislative intent. Other times the focus has been on whether the constitutional remainder can function without the invalid part. Still other times the Court has severed or refused to sever without acknowledging the doctrine at all. The oral argument on severability reflected this state of affairs, as the Justices spent a considerable amount of time exploring the merits of several possible tests. Without knowing the doctrine, it is difficult to anticipate a result.

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument.

Second, and regardless of whether the Court severs the mandate, most—maybe even all—of the Justices will emphasize that the Court has a general preference for severance, and that severance is often an appropriate result because of the permissiveness of the doctrine. I think the liberal Justices will make this point in emphasizing that the mandate should be severable. And I think that the conservative Justices will make the point because of their previously stated preference for as-applied challenges.

The story on the latter point goes like this: The Roberts Court has repeatedly expressed a preference for as-applied challenges over facial challenges. The distinction between the two, and thus the justification for the preference, requires a liberal severability doctrine: If the law disfavors or prohibits severance, the result of successful as-applied challenges will tend to mirror that of successful facial challenges by dictating total statutory invalidation. This follows from the so-called “valid-rule requirement,” which holds that partially invalid statutes cannot remain operative because litigants are entitled to judgment under constitutionally valid rules of law. By contrast, if severance is easy to obtain, the result of successful as-applied challenges will often be partial invalidation, as the Court’s preference intends. In emphasizing that severance is generally appropriate, the conservative Justices will buttress the distinction between facial and as-applied challenges by preserving the tendency for the latter to yield only partial, rather than wholesale, statutory invalidation. The distinction won’t matter in the PPACA litigation, but it will elsewhere.

Otherwise, all bets are off. I’m not sure whether the Court will sever, or how they will sever if they choose to do so.

Item on the Colloquium in Law

Here is a story with some details on the Colloquium in Law law and religion seminar which my colleague, Mark Movsesian, and I taught this past semester as part of the activities of our Center for Law and Religion. The format was experimental -- demanding that the students assess a body of scholarship and zero in on the new claims being made by our presenters -- and both Mark and I thought it worked very well. Though the story does not quite say so, our students were really the stars of the course. Their questions and engagement with the speakers were direct, targeted to the specific arguments made by the speakers, and incisive. Mark and I were very proud of them.

The Two Percent Solution

Readers of the recent Hettinga decision, or of Jim Chen's work, will already know the key role that dairy plays in our system of constitutional law. (Perhaps because, as Jerome Frank once observed, it's all about what judges drank for breakfast.) They may particularly enjoy this article in this week's New Yorker (subscription required, alas, but the link contains a synopsis). It's about the raw food movement, particularly the raw milk movement, and its travails. It contains more than enough fodder (so to speak) for any con law professor looking desperately for a question for this year's con law final: interstate commerce, weak substantive due process claims, great nickames ("the Rawsome Three," "the Dairy Fairy"), and more.

It also, if I may be forgiven for saying so, is a wonderfully American story, right up there with Fitzgerald in capturing so many distinctive American qualities and narratives: (over)zealous regulators, hippies, libertarians, libertarian hippies, celebrities, automobiles, nostalgia for an imagined past, (0ver)zealous parenting, cultishness, the Tea Party, the vaguely narcissistic quest for endless life and health and the belief that it can be purchased, junk science, wealth and its disparities, California, and not least the marvelous way in which any lifestyle decision can become a community, an Internet phenomenon, a big business, and an occasion for apocalyptic speeches about liberty and fascism. I generally don't care for overpraising of the New Yorker, and the story is more fun, because of its details, than great. But this one is well worth reading.

Tuesday, April 24, 2012

Other LawProfs on SB1070 on the Eve of Argument UPDATED: Now with Transcript

I've shared my views on SB1070 at some length. However, not surprisingly, the case has also generated commentary from many other, much wiser, profs. Here's a sampling.

David Harris of Pitt wrote about the racial profiling issues on Jurist. Toni Massaro (Arizona) and Carissa Hessick (ASU) were on TV previewing the case. Peter Spiro (Temple) wrote an op-ed in The New York Times arguing that the law should be allowed to stand, because even though it is a bad law, it will wither away on its own and punish states that adopt it. (But at what cost?)

Steven Schwinn (John Marshall) is cited here. Margaret Stock (Alaska) writes that even if Arizona wins, they may lose in the long run. UC Davis Dean Kevin Johnson is quoted in this Arizona Republic article, and blogged about the case here. In Slate, Paul Kramer, a Vanderbilt immigration expert but not in the law school, perceptively argued about the relevance of an 1876 case. Pratheepan Gulasekaram (Santa Clara Law) and Karthick Ramakrishnan (UC Riverside poli sci) have an op-ed in the LA Times contending that SB1070 and its siblings are the product of partisan politics, and one of them has a post on the ACS blog. Evelyn Cruz (ASU) is quoted here. UC Irvine Dean Erwin Chemerinsky previews the case here. Finally, Marc Miller and a friend have an ACS Blog post here. Apologies in advance to anyone I missed.

Skyscrapers in D.C.

When I was a kid, in Anchorage, I was giddy with excitement and flush with pride when we got (what seemed like) two bona fide skyscrapers -- big glass boxes, each more than 20 (!!) stories high.

When arcane baseball stats just weren't enough, I would memorize lists of "the ___ tallest buildings in _____," and I once did a school presentation of some kind on Philadelphia's (then) practice of not allowing buildings taller than the William Penn statue. Goofy, I know . . .

Anyway, all this might explain why this piece, in Slate, caught my eye. If the (non-church) skyscraper is a kind of American invention -- a hallmark of great cities like Chicago and New York -- then Washington, D.C., is kind of an American anomaly, no? I guess that, despite my youthful skyscraper geekery, I have always liked the way D.C. looks (and not because I have any ideologically motivated desire to somehow elevate government buildings over commercial ones). But, the piece makes me wonder if I'm wrong. If D.C.'s somewhat "parisian" look increases businesses' rents and tourists' hotel expenses, is it worth it? How would we know?

Technology's Intent

I'm a big fan of Dropbox. With a full schedule of professional travel, a need to work at home and on the go, and a less-than-perfectly-reliable university-issued computer, I've learned the hard way that I need dependable, easy-to-use cloud-based storage for my important data. But Dropbox has always targeted the casual data-sharer as much as the power user, and yesterday the company unveiled a new feature of its software that allows users to share files on their computers with anyone using an http link to a copy of the file stored on Dropbox's cloud-storage servers. The thing about this service, as some tech commentators have pointed out, is that it implements essentially the same technology that led to the federal government's recent criminal indictment of file-sharing juggernaut MegaUpload and its eccentric founder, Kim Dotcom.

So does Dropbox have a date with the feds in its future? I think most would agree the answer is no, but getting to that answer reveals the problems we've created in trying to manage the social, legal, and technological issues that surround the exchange of information. More after the jump...

The big story in copyright law for the past two or three decades has been the ongoing battle between the forces of "content" and "distribution"--between the owners of intellectual property rights in information and the sellers of technology that makes the distribution of that information cheaper, easier, and broader. This is nothing particularly new; those who make their living off of the creation and sale of new information have always been wary of technological progress. But mass adoption of digital technology and high-speed data networks have significantly raised the stakes.

In Section 512(c) of the Copyright Act (the so-called "DMCA safe-harbor") and in the case of Sony Corp. v. Universal City Studios, Congress and the Supreme Court, respectively, attempted to strike what turns out to be an uneasy balance between these competing interests. Section 512(c) immunizes the sellers of technology that facilitates the distribution of copyrighted information from liability for infringing uses of their services by customers, provided the technologists meet certain conditions. In Sony, the Court announced that technology itself is not a copyright outlaw so long as it is capable of substantial non-infringing uses. But of course, individuals and institutions may well use such technology for infringing purposes, and such uses remain actionable. We thus have a distinction set up within copyright law itself between the power of a technology in itself and the use of that technology by real people in real social settings. While we may hold individuals responsible for uses of technology that infringe a copyright, we do not hold the technology itself responsible for such uses.

This leads to the odd situation in which we now find ourselves, where the viability of entire segments of the digital economy, and of some of the largest and fastest-growing businesses in the world, come to turn on the thorniest and most contentious questions of fact the legal system can ever grapple with--questions of intent. In MGM v. Grokster, for example, the defendant companies were denied summary judgment on grounds that there was sufficient evidence that they intended to induce third parties to infringe the plaintiff's copyrights using their peer-to-peer file sharing services. But of course, intent is not a fact that can be proven by prying open the skull of a defendant and looking inside. Intent must always be proven circumstantially. In Grokster, the most important category of circumstantial evidence cited by the Court as sufficient to create a triable issue of fact (and likely sufficient to award summary judgment to the plaintiff--which was eventually granted) was evidence tending to show that the defendants targeted the cast-off customers of adjudged secondary infringer Napster. But "complement[ing]" that evidence, the court said, was the defendants' failure to impose filtering systems on their services that Section 512(c) arguably makes legally unnecessary, as well as evidence that the defendants--gasp!--were interested in growing their user base to maximize advertising revenues.

This is what Larry Lessig once referred to as "the monster Grokster created": the inquiry into a particular defendant's state of mind is now part and parcel of the legal battle between content and distribution. And because evidence of intent is necessarily circumstantial, these cases are likely to turn on a factfinder's response to the overall story woven by the parties' lawyers--a gut reaction as to whether the defendant is a good guy or a bad guy. Facts that might otherwise seem innocuous can be cited as circumstantial evidence of intent to commit secondary infringement if the factfinder just doesn't trust the defendant.

Which brings me back back to Dropbox and its new link-to-share service. Dropbox, it seems, is not maintaining a searchable index of the files its customers share via link--the type of activity that got Napster in trouble. One might think that this fact suggests the company has no interest in attracting customers who are interested in using its services to locate and freely download copyrighted content. But take a look at Paragraph 10 of the MegaUpload indictment, which alleges that MegaUpload did not maintain a searchable index of content on its servers in order to "conceal the scope of its [copyright] infringement." That paragraph also notes that MegaUpload provided financial incentives to customers whose uploaded files increased traffic on MegaUpload's website and, thereby, increasing the company's revenue base. Dropbox, in turn provides existing customers with additional free cloud storage for referring new customers to the service. If, as Grokster suggests, a desire to broaden one's customer base is circumstantial evidence of an intent to induce infringement, should we expect the refer-a-friend program to be cited in a federal indictment or a civil complaint in the near future?

I don't think so, but I can't be sure, and that is ultimately the point. The social dynamics of information exchange that new technologies like Dropbox (and, frankly, MegaUpload) make possible are unpredictable and often out of the direct control of the service providers themselves. Such exchanges can be public or private, shared or hidden, broadcast or narrowcast, and everywhere in between. Section 512(c) attempts to account for this, for example by making knowledge of specific infringing activity a prerequisite for secondary liability. But like intent, knowledge is a thorny factual issue that courts continue to disagree about, often based on differing views of the inferences that can be drawn from a particular mix of circumstantial evidence.

For my part, I look at all this as a lawyer who, in a former life, was sometimes called on to give clients guidance as to whether a course of action they were considering for their business would be likely to generate legal liability. I have to admit, I'd have a hard time giving a client like Dropbox useful advice today. And it strikes me that a legal regime that doesn't allow a segment of our economic and social lives as fundamental as the information we exchange with one another to be planned with some degree of certainty isn't doing its job very well.

Once a piece is submitted on Expresso, the waiting begins until an offer (hopefully) is received. Once an offer is received, many authors will chose to expedite their submission. This typically involves a note sent to all of the other journals that they prefer over the journal that they received an offer from (or sometimes similiarly situated journals) stating that they would like to hear back on their piece within a limited period of time.

Expedited reviews can be a source of stress for authors. Sometimes they wonder, for instance, if they get an offer from a top-100 journal, should they expedite it all the way to the top upon receiving their first offer? Or should they just expedite to the top 50 and wait until they receive another offer to keep expediting on up? What should an expedite say? Should it be short and sweet (ie the form email that Expresso provides) or should it try to sell editors on how amazing the piece is in addition to giving them a deadline? There are many questions that expedited reviews raise that I of course have no answers to, but I think given my interviews with editors at Stanford, Vanderbilt and BYU (and a few other informal ones with editors at T10 schools), I may be able to provide a bit of insight.

So, a few tips:

1. Writing a personal email (that is nice) with an expedite does not hurt. Editors receive a lot of requests for review and being nice or writing something personal to the journal is never going to hurt. Telling the journal that you will take their offer immediately with an expedite has worked for some authors but it also has backfired by making you appear desperate.

2. Writing a short note about how amazing/timely/relevant/citable your topic and piece are in the expedited review does not hurt.

3. Realize (and I didn't realize this until my interviews) that the person who is receiving your expedited review may not be an articles editor who is substantively involved in chosing articles. At some law reviews, the editor receiving the expedites is a managing editor who makes assignments to various law review editors. In these cases, writing extra nice notes #1 is not as helpful as #2 making them think your topic/paper is amazing. In the #2 case, the managing editor may be more likely to pass your article on with a note stating that the articles editor should take a close look.

4. Be mindful that the schools most interested in your piece will be those in the general upward vicinity of the journal where you received your offer. It seems that articles editors' interest is most piqued when an author has received an offer from a school within the general ballpark of the school they are seeking expedited review from.

5. Be honest in your expedites. It is not even close to worth the damage to your reputation among faculty and law reviews to make up an offer to expedite on. I spoke with some editors at a T-10 law review that had a black list of authors that had faked expedites in the past that they passed on their faculty and new editors. They had added an additional author this year because the particular author had faked an expedite from one top law review to another and the senior articles editors at those schools happened to be good friends. Ouch. (It may be smart for Expresso or individual journals to require some sort of verification to stop this from happening--I like Columbia Law Review's expedite system since they require the "phone number or e-mail address of a contact person" at the journal where you received an offer. That would seem to act as a disincentive to create a fake expedite.)

That's all of the tips I have. Any additional tips you have (particularly from you articles editors and former articles editors) would be great as well.

Ok, so next up...a quick post on fall submission timing and a post on best practices for law reviews (former articles editors from top schools who are now in the academy, feel free to email me if you are willing to answer a few questions).

Constitutionality and political workability

Ronald Dworkin has an essay in the New York Review of Books arguing for the constitutionality of the individual mandate and ACA generally (H/T: Harold Pollack). Pollack flags the key paragraph, in which Dworkin twice makes the point that the final version of ACA--Private insurance, no discrimination, and the individual mandate--was the only solution that was politically possible or workable in the current legislative environment.

Many ACA opponents (including my friend and colleague Elizabeth Foley) insist repeatedly that the mandate is unconstitutional, but it would be perfectly fine (as a constitutional matter) to impose Medicare for everyone. But single payer was not politically viable, not only because of the keep-government-out-of-my-Medicare folks, but also because of the business interests of the insurance industry. So Congress came up with something that was politically possible, that achieves the same result while imposing no greater burden on any individual and not (at least on any of the arguments actually made in court) infringing on any constitutional liberty.

The question is how that political reality should cut in the constitutional analysis. Dworkin's point (which is something that had been circling around) is that invalidating the individual mandate is to say that, under the Constitution, Congress lacks the basic affirmative power to handle modern situations. The point of McCulloch and rational-basis review is that the courts should defer to Congress on choice of means, that Congress can best determine the best or most appropriate way to address a problem that is within its legislative authority. It seems to me that one of the factors Congress should be able to consider, and to which courts should defer, is the political landscape and what can be enacted given preferences of the public and the members of Congress.

Punishment Theory in the OSJCL

The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue. There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe. And there's something by me, too.

Thanks to Mitch and to Joshua Dressler for letting a welterweight fighter slip into a heavyweight class.

Monday, April 23, 2012

Interactive Casebooks

Recently I learned that I'll be teaching Copyright law for the first time, a circumstance that launched my search for casebook. One of the ones that I considered was Brauneis and Schechter's Copyright: A Contemporary Approach, which is an interactive casebook just published by West. The book is released in a paper format, along with a one-year subscription to an electronic version of the book. Prawfs using a West/Westlaw password can obtain access to the electronic version.

The authors used the electronic format of the book nicely. I liked the links to the subject matter of the cases, such as clips of songs, images and the like. For example, one link which allowed me to play the video game that was the subject of Williams Electronics v. Artic Int'l. The links to the statutory text were particularly useful.

Although I ultimatley didn't end up going with this one (at least this year), I found the format helpful and intriguing, particularly for courses where there are strong visual components. If you've used any of the interactive casebooks in your courses, your feedback about your experience would be very helpful.

Arizona v. United States: A Lesson from History

Not surprisingly, the United States and a number of amici in Arizona v. United States rely on the 1876 decision of Chy Lung v. Freeman, and it goes unmentioned in Arizona's brief. The Chy Lung Court unanimously invalidated California's efforts to suppress Chinese immigration, concluding that immigration was an area of exclusive federal authority: “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” A companion case, Henderson v. New York, invalidated a similar New York law allegedly justified by the police power, explaining that "no definition of [the police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."

I wish one of the amici had mentioned that Congress agreed.

As Justice White famously explained in Runyon v. McCrary, Congress enacted the predecessor to 42 U.S.C. 1981(a) in 1870 to protect Chinese immigrants being persecuted in California. It provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Therefore Congress, like the Court, agreed that the risk of invidious prejudice was too high to allow states to discriminate against non-citizens. The Framers of the Constitution, likewise, recognized that state courts might discriminate when it granted non-citizens access to the federal courts in Article III.

Neither Chy Lung nor Section 1981 did anything for the Chinese in the long run; Congress passed the Chinese Exclusion Act in 1882, and the Court upheld it. But these actions make the point even more clearly: Even though Congress and the Court ultimately agreed as a policy matter that the Chinese had to go, they still insisted that the federal government was responsible for making that decision and carrying it out.

Friday, April 20, 2012

How Much is Cervantes Worth?

This column by David Brooks yesterday seems to be in earnest. The idea is that we ought to tally up how much a student learns in college to see whether it's worth the extraordinarily high price tag. That ubiquitous phrase of Mammon-speak, "value-added," makes its proud appearance -- with its now standard assumption that valuable things ought to be valuated, and that what is invaluable is synonymous with what is worthless.

There are many strange little features about this proposal, the principal one of which is that it does not seem particularly well suited to the liberal arts. How much is a shock to the intellectual system worth? How much for a new thought? A new turn of phrase? An old insight refreshed? A conversation with a teacher about what Proust meant, or what Milton didn't? The knowledge of something consummately impractical -- say, the alignment of the planets? The appreciation of a sculpture? Reading Cicero in Latin? What is the worth of a morally unhygenic novel? What is the value-added of becoming less certain about what is valuable in life? Give me a number.

But perhaps the liberal arts are not the object of these sorts of proposals, and it is the non-liberal arts college education whose value can be quantified (I do not think this is true, but I'm otherwise at a loss to explain the column's target). If that is the case, and what Brooks says is true -- namely, that fewer people will send their children to college in the future for the purpose of civic or professional training without a drastic reduction in tuition -- then perhaps the result will be a return to the days when college was only for those interested in the liberal arts. Others will go to work after high school, or attend trade schools, or do something else. Or, as Brooks seems to suggest, perhaps schools will simply reduce their prices dramatically to match the ratified valuation. Will the new dispensation apply to liberal arts colleges too?

Underneath the Law Review Submission Process: Part VI Interviews with Those who Reject Us

In this next post on the law review submission process (see intro, part I, part II on timing of submissions,part III interview, part IV interview and part V interview if you are interested in interviews with Stanford and Vanderbilt editors), I interviewed two articles editors, Joseph Ballstaedt (JGB) and Ryan Merriman (RM), and the editor-in-chief, Joe Orien (JAO) for 2012-13.

One quick note before the interview. I was really impressed with something that the BYU Law Review articles editors did this year before giving an offer to an author. They did citation counts for authors to see how their previous work has been received by the academy as an indication of how important their future work will be. This isn't necessarily helpful for junior scholars who may not have had time for their work to be cited, but I think it can be helpful for more established professors who may not teach at fancy schools but have written important pieces. And as long as this isn't the sole or primary criteria, I think this could be a good objective measure by which to judge authors and articles.

1. If you can briefly describe how many articles you received in this winter submission cycle, when you received the most submissions (if there were any such peaks in the submission cycle) and generally how you weeded through these submissions.

JGB: We received about 1000 submissions, I believe. We received articles for about a month and half, beginning in early February and ending in late March. It seemed like the flow of article submissions was pretty steady, but did pick up some toward the end of March. At least that is my memory. We had to make quick decisions at times to find articles worth reviewing even further and many articles were quickly cut out based on being too short, not having a clear thesis or engaging introduction, addressing an strange topic (like an article promoting incest), or sometimes based on not having a great publication history. However, we often gave great consideration and even offers to young lawyers and professors if their articles impressed us after a quick read.

RM: Assuming the other four Articles Editors reviewed roughly the same number ofsubmissions this semester as I did, we received somewhere between 900 and 1000 articles. I personally reviewed 189 between late January and about the middleof March. It seems like we were flooded with articles towards the end ofFebruary and early March. Given the sheer volume of submissions, it'simpossible to thoroughly read through each article. The only time I ever rejectan article based on the CV alone is when the author is not a law professor, butI always take a closer look at the article when the author has a strong CV.I'll read the introduction, the conclusion, and skim through the rest if it'sinteresting. My primary goal is always to pass on articles that will generatecitations to our law review. To that end, I look for articles that are not toonarrow, make a theoretical/descriptive contribution to the literature, orpropose a change to some area of the law. A concise, well-written introductionthat clearly states why the article is an important contribution always catchesmy attention.

2. How many levels of review do you have and do you have a vote on each article? If so is it majority or supermajority vote?

JAO: We have three levels of review: an initial prescreen stage, a reading stage, and a final review. A single editor reviews each article at the prescreen. To reach the final review, each article must have been read and accepted by two articles editors. At the final review stage, I first read the article and solicit advice from faculty members. The article is then presented to all of the articles editors for discussion and a final decision. All of our decisions this year were unanimous.

3. How do you determine whether an article should be accepted for publication? What factors are most important to you? Article topic? Author's credibility?

JGB: It was always nice when the author addressed either a topic we were familiar with or had interest in; however, we often had to make judgments on articles addressing topics well outside our expertise. In these situations, a indication that we should make an offer or further investigate an article was how well we understood the topic after reading the article. If an author can successfully introduce me to a new topic and unique proposal within that topic, I am satisfied. To do this, he or she must clearly and simply explain the foundation (the basics) of this topic while still engaging a new aspect of this material in a clear way. If an author cannot do this, it is much more difficult to have confidence in the author's article. Great minds and writers, in my opinion, can explain complex matters in a simple way.

JAO: In my review at the last stage of the process, I focused almost exclusively on the quality of the article and tended to only look at the author's credentials in close cases where we needed to rely on the author's credibility in explaining a complex topic. In judging the quality of the articles, I focused on each article's utility (target audience, relevance of thesis, scope), strength of arguments, writing and organization, and research quality. The best articles obviously excelled in all four areas. For articles deficient in one area or another, my decision rested on whether or not the deficiency could be improved through the editing process (e.g., it's hard to improve an article with a poorly conceived thesis).

RM: In descending order, the most important factors to me are (1) the substantive quality of the article (again, does it make a novel descriptive/theoretical contribution to anarea of the law) (2) technical quality, (3) author's prestige. If I read anarticle with great ideas, polished prose, and it looks like it's already been blue booked, I always pass it on to another editor even if the author isrelatively obscure. In fact, because we lose so many articles from professors at T14 schools to other law reviews, I really make a special effort to look foryoung scholars who've written excellent articles. Additionally, I typically reject articles that seem too narrow, or seem to belong in a niche journal (technical articles on tax or patents that don't seem broad enough for a more general audience; pieces that read more like an econ/polisci/international relations piece than a traditional law review article).

4. Tell me about the cover letter. What is the relative value of the cover letter as opposed to the CV? What were the most effective cover letters you saw?

JGB: I did not put much weight in cover letters. In fact, I only remember reading one or two. This was because we were trained not to read the cover letters and found more use in reading the introduction of the article. I would first review the CV to see whether the author was publishing successfully. Then I would consider the substance of the article, skipping the cover letter and going to the introduction--what any future reader would use to quickly assess the utility of an article.

RM: I'll be honest--After the first 20 or 30 submissions, I stopped reading cover letters. Most of them are generic and sound exactly the same. The cover letters that Ithought were effective briefly describe why the article is important in relation to prior scholarship, but an effective introduction in the article does that anyway. For that reason, I think the CV is definitely more important than the cover letter.

5. Describe (each of you), the top two articles you saw this submission cycle and why you believed they were the best articles.

JGB: My favorite submission was very clean. It did what every law review article does (or tries to do), but did it better and more concisely. It did not develop any tangents or speak too long on any aspect of the topic or area of law. Rather, it gave a clear introduction that told me what the article contained, gave a concise but adequate background of the law concerning this topic, and gave me a clear idea of the author's proposal and addition to this area of law. Essentially, it was your stereotypical law review article. It wasn't fancy. I would have been able to read this article as a beginner to the topic (which I was not) and also as a student of the subject interested in the author's proposal (which I was). I didn't have to read the whole article to find the useful parts because it was organized well. The author did not hide the ball or use long-winded explanations. Other authors usually spoke too long so I was grateful to this author for taking the time to slim his article up.

My next favorite article(s) was any article that did the same. In sum, any article that clearly (and sometimes creatively) made its point and made it quickly.

JAO: My favorite two articles both had excellent writing and organization. When an article has clear organization, road maps, transitioning, topic sentences, summaries and conclusions, and signposts, it makes a world of a difference in how I perceive it. Both of the my favorite articles did this. They were easy to read, and I didn't have to re-read paragraphs several times to figure out what the author was trying to illustrate. And I don't think they were easier to read because of the subject matter (one of them, in particular, dealt with a rather complex topic).

RM: We extended an offer (that was ultimatelynot accepted) on an article that examined the relationship between tort reform and economic activity. While we are sometimes wary of pieces that involveeconometrics (because frankly we’re not qualified to evaluate complex empirical work—we’re barely qualified to evaluate traditional law review pieces), the paper used a unique data set to evaluate untested empirical claims surrounding a highly contentious, high-profile issue. Organization was clear, writing was crisp, and technical quality looked ready to publish.

The other article that really impressed me proposed a thought provoking solution to collective action problems that did not rely on the threat of sanctions or prospect of special benefits to participants. It used some game theory, but in a straight-forward, intuitive way I thought was accessible to a general audience. The author applied her theoretical insights to some areas of the law and proposed some substantive reforms. Organization and writing was easy to follow, citations were already in good shape, so even though the publication history was pretty sparse, I felt comfortable recommending it.

6. What kinds of trends did you identify that we can tell law professors about. For instance, did any authors do anything interesting this year that you wanted to pass on?

RM:I noticed a lot of empirical pieces. Some of them were fairly sophisticated (logit/probit regressions, difference-in-difference estimation, instrumental variables) and others were more straightforward (OLS, simple cross tabs, etc.). Personally, I loved seeing so many empirical papers (full disclosure: I was anecon/polisci undergrad). However, I think in general law students feel a little skittish about accepting complex empirical papers because most have no idea how to evaluate the methodology and results. The best articles evaluated controversial, salient legal issues or challenged long-standing assumptions in the literature. They also focused mostly on presenting the results and discussing their implications and left most of the technical explanation in anappendix.

7. How effective is it when authors are extremely communicative with you with emails and updates? Is this nice or annoying? Do you prefer eager authors who may tell you that they are willing to accept an offer if you give one without expediting or does that not help?

RM:I don’t think I’d communicate much before you’ve been contacted by the law review other than to let us know you’ve received an offer. Given how much we don’t know about many areas of the law, we’re always trying to look for indirect evidence that an author produces influential scholarship that will be cited—publication history, quantity/quality of citations to author’s priorwork, prior work experience indicative of expertise, and of course, offers from other journals. If you let us know that you’re willing to publish with us no matter what, that might lead use to speculate that the article isn’t important enough to generate interest from other schools.

JGB: It is certainly tempting to give more weight to an author who is willing to accept an offer if we make him or her an offer. We as article editors have a lot of work to do, and we would love to have solid articles as quickly as possible. It is somewhat discouraging to know that many of the great articles that we like find offers elsewhere. I am tempted to make an offer to an author whose article might not be quite as amazing but will be accepted rather than 3 or 4 offers to authors with stronger articles but who might not accept an offer.

8. Do you ignore articles that do not come from expedited reviews or try to balance expedited reviews from reviews of regular articles?

JGB: I tried to give equal weight to all articles, and I read all the articles in the order that I received them generally. But as time went on, I did start to favor expedited articles in an attempt to find better articles quicker. it is certainly hard not to read an expedited article with a presumption that it will be good. We read most articles with a presumption to reject, but an expedite automatically changes that. And they are generally better anyway

RM: I will read expedited articles first, but they do not receive more substantive attention than other submissions. In my experience, most expedited articles that we offer end up publishing at a higher-ranked journal anyway.

9. Do you try to obtain a balance in article topics that you are publishing? First year topics v. non-first year topics? Public vs. private law?

RM: Not really. If wealready have two articles on the same topic in an issue, we might be less inclined to extend a third offer on the same subject. But generally we’re mostconcerned with filling up our publication calendar, as are most similarly situated law reviews. That probably changes as a journal’s prestige increases.

JGB: I didn't favor any kind of topic, at least consciously. Rather, I try to find articles that will be read and will be cited. I want to add to current legal discussion, wherever it might be. Sometimes a topic that I found very interesting was not likely to receive attention, so I didn't give it as much weight, despite my own interest in it.

JAO: I tended to favor articles with broad applicability. Although a broad thesis can quickly become unmanageable, I tried to look for foundational articles that would lend themselves easily to further discussion in academic circles. I think a thesis can be too narrow in any area, so I'm not sure how much the subject matter affected my thinking.

10. You have a floor here to advice law professors on their articles. What are some tips that you would give for professors to improve their articles?

JGB: If you co-write an article with a less prominent author, it is still your work. I feel that a few great authors let co-authors use their name, and the resulting article wasn't very impressive. Also, good Bluebooking and removing simple typos can make a great difference for two reasons. 1) We don't want to get your article ready to publish--that means a lot of work for us. We want it to come ready to publish and polish it off. 2) Poor Bluebooking and editing make your article lose credibility. Maybe we as law school students put too much emphasis on Bluebooking due to the many edits we do, but it is still something that we value (unfortunately). And grammar errors and other typos just make it look unprofessional. That goes without saying.

JAO: I'm sure most professors already recognize this, but having student-edited journals (as opposed to peer-edited) means that we are frequently unfamiliar with the law underlying each article. Unless we've taken a course on the material covered in the article, we often rely on the article to explain it for us. So if the article doesn't explain, even briefly, the underlying law, we will naturally find it more difficult to understand than an article that builds the blocks necessary to understanding the analysis. In fact, as I'm sure is the case with most editors, the enjoyable part of screening articles is learning about various areas of the law. I think we will often be drawn (perhaps unconsciously) to those articles that attempt to educate the reader generally.

RM: So many factorsthat persuade me to recommend an article are out of an author’s control by the time they submit an article. Does it matter if you went to Harvard or Yale or clerked at the D.C. Circuit? It certainly doesn’t hurt. But setting those types of factors aside, the bottom line is to make the article as ready for publication as you possibly can prior to submission. So many authors see law review editors as an army of (free) research assistants. If something in your article seems like a pain to edit, we’re not particularly excited about doing it either. If an author is clearly an established expert in his/her field with an impressive CV, or if the substance of the piece is particularly compelling,we’re more willing to take on a difficult technical project. But if a young scholar with a short publication history submits a technically deficient piece, it’s harder to justify taking on the extra work.

11. Feel free to add anything else that you think may be helpful.

JGB: One of the things that I loved to see was an article in the standard (if there is a standard) law review print format. Rather than double spacing and normal formatting, an article in law review publication format looked more like a publishable article. Though this probably shouldn't matter, this format made me feel like the article was law-review bound--rather than any other double-spaced research project that we as students have written and read thousands of times.

RM: I’ll briefly echo what my colleagues have mentioned regarding the importance of laying a little groundwork before launching in to your analysis. As second and third year lawstudents, there’s a lot we don’t know about many areas of the law we’rerequired to evaluate. We rely a lot on the article to establish a foundation.The most effective pieces in my view do several things—(1) provide a briefbackground that orients me to the prior scholarship and existing legalprecedent, (2) identifies a gap/problem/misconception in that area of the law,(3) explains briefly how the article responds to the identifiedgap/problem/misconception. The best pieces lay out all three things in the introduction.

At fivrr, one can purchase a number of products and services, some useful, others absurd, for five dollars. You can also ask for things you are willing to pay five dollars for. I am hoping Prawfs readers will answer for free a question that I have been unable to resolve in my own mind (but I will pay five bucks at fivrr if I have to).

I understand why a mandate to buy insurance might be unconstitutional. There are limits on what the government can force us to do. I happen to agree with my colleagues Vik Amar and Alan Brownstein who explained in an LA Times op-ed that the slippery slope argument doesn't work here. But let's say that the individual mandate is unconstitutional.

I don't understand why Congress, nevertheless, cannot impose a tax on those who do not have or buy insurance. The Internal Revenue Code is full of incentives (and penalties) for things that Congress could not mandate (or prohibit) directly.

Congress can't (or shouldn't) make you get married, but they can lower your taxes if you do. Same with eating broccoli, buying a home, and tithing to your church, temple, mosque, etc. Similarly, they can't prohibit you from getting married, but they can raise your taxes if you do.

In addition, as a short paper featured recently on Taxprof explains, there is no intrinsic economic difference between a tax incentive and a tax penalty. So why shouldn't the Court say (if it is so inclined) that the mandate is invalid, but the tax effects of not buying insurance remain in force? Again, changing people's tax rates because they do (or don't) do something that Congress wants is absolutely routine.

One reason might be the famous distinction between a penalty and a tax. If the financial consequence were in fact a penalty, if, for example, it were public and stigmatizing, or carried with it collateral consequences affecting other domains of life, then it might be the equivalent of a mandate, and therefore valid only if they could directly require it. But the beginning and the end of this penalty is a limited, private financial consequence on the calculation of one's income tax.

And perhaps in some cases there is a substantial difference between "raising your taxes if you don't" and "lowering your taxes if you do." For example, I would find it more objectionable to raise taxes on people who do not contribute to their faith institution than it is to offer a deduction to people who do, even if the economic effect were identical. But there is no arguably inappropriate social message from Congress saying "everyone should have health insurance"; not even Obamacare critics object to the government merely encouraging people to eat Broccoli.

Justice Scalia's dissent for himself and Justices O'Connor and Breyer in the line item veto case is an eloquent explaination of why language technicalities like this should not be used to frustrate the powers of Congress. In Clinton v. New York, the majority struck down the statute. In Scalia's view, this was wrong:

The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead-authorizing the President to “cancel” an item of spending-is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President's action it authorizes in fact is not a line-item veto and thus does not offend Art. I, § 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.

The financial consequence is a tax, not a penalty in the sense of attainder or conviction. The technicality that Congress wrote "penalty" when it should, in retrospect, have said "tax" should not invalidate an otherwise valid measure.

Rob Williams Doesn't Take Censorship of his Scholarship Lying Down

My Arizona colleague Rob Williams, the E. Thomas Sullivan Professor of Law, has his work censored when a text that included it was exiled from the Tuscon Unified School District's reading list. He did not like it, and he told the school board so in this video--the word "barbarians" was used, and not as a compliment.

This was part of Arizona's effort to eliminate ethnic studies from public schools in Arizona. Here's The Daily Show, interviewing one of the school board members Rob "chatted" with.

Thursday, April 19, 2012

Arizona v. United States: Criminalizing Failure to do the Impossible

The amicus briefs in the SB1070 case are as good and interesting as in any case I have seen. They include briefs from states, members of Congress, and law enforcement authorities on both sides. There is also a brief from former Democratic and Republican cabinet secretaries opposing the law.

The Brieffor the Leadership Conference on Civil and Human Rights and other groups was written in part by NYU Law students who I had the privilege of chatting with by email when they were drafting it . One important argument they advance, which I have not seen elsewhere, is that Section 3 of SB1070 criminalizes a failure to comply with a duty under the Immigration and Nationality Act which, under the intracacies of federal law, does not in fact exist.

Section 3 makes it an Arizona crime to fail to register with the federal government as required under 8 U.S.C. 1302(a). Failure to register as required is indeed a federal crime. But it is not a crime which people who enter without inspection, that is, most undocumented immigrants, can commit. This is because the statute directs the federal authorities to promulgate forms to carry out the registration program. They have done so, but none of those forms are directed to, or appropriate for, undocumented people to fill out. The forms (and thus the requirements) are all aimed at people entering the United States lawfully, or who have access to some path to lawful presence. This has been clear at least since the Eisenhower Administration promulgated a list of registration forms aimed at lawful residents and visitors.

The United States could, of course, draft and make available a form for undocumented people, and anyone who willfully failed to file would be in violation of the law. They have not done so, possibly because they regard it as unlikely that they would get many takers, and existing legal tools and penalties are sufficient to remove and punish those here without authorization. In addition, 8 USC 1304(d) requires the issuance of a receipt or other immigration document to anyone who registers. If undocumented people were subject to registration, and could register, this section implies that they would, by so doing, become legal!

The brief's punch line: "Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will criminalize their presence in this country.This is in direct conflict with Congress’s decision not to criminalize mere presence. All legislative proposals to criminalize mere presence have failed."

This little jewel of an argument makes clear what critics of the law have been saying from the beginning: States generally do not have the knowledge of immigration law to make these kinds of subtle policy choices. When they blunder ahead anyway, their basic purpose is not to help carry out the federal program, but to go beyond it, to impose punishments, restrictions and requirements that Congress and the officials designated by Congress to carry out the law have chosen not to.

Free speech at the old ballgame

I have suggested that the brouhaha over Ozzie Guillen's "praise" of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).

But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen's firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don't like.

I attended today's game at Marlins Park (against my inept Cubbies), the third game since Guillen's reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins' victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.

I had the opportunity of presenting a paper at Vanderbilt Law School this year and was extremely impressed with the faculty. I am now equally impressed with their student editors. Here is my interview with Jenna Farleigh, Editor-in-Chief 2011-12; Caroline Cecot, Senior Articles Editor 2011-12; and Michaela Jackson, Senior Articles Editor 2012-13.

1. What is Vanderbilt's review process for articles? (how many levels, what is the vote like, etc.)

The articles review process for the Vanderbilt Law Review consists of two levels of review. First, the Senior Articles Editor assigns each article submitted to the Review to an individual articles editor. Where possible, we try to match the topic of the article to the interests and experience of the articles editor. Each editor is responsible for reviewing her assigned articles in sufficient detail to decide whether to recommend the article for Full Committee Review, which is the second and final stage of our process. The Senior Articles Editor schedules recommended articles for Full Committee Review. In Full Committee Review, all nine articles editors read the article in full and then discuss and vote on whether or not to extend an offer for publication.

The process takes time.

Although we would certainly like to send more articles to committee, there is a natural limit to the number of articles that we can review each week. But no news generally means that you are still in the game.

2. What is your acceptance rate for articles?

In the 2011-12 academic year, the Vanderbilt Law Review published seventeen unsolicited articles/essays. For these spots, we received about 2,600 submissions, resulting in an acceptance rate of less than one percent. Already, in the spring selection cycle for 2012-13, the Review received close to 1,600 submissions. From this pool, the journal will publish ten articles.

3. Who receives your expedited reviews and how are they used in the review process? Which are the most helpful?

We receive requests for expedited reviews through ExpressO. Each articles committee member is expected to keep track of the expedite requests on her assigned articles. Sometimes the Senior Articles Editor will remind editors about soon-approaching offer deadlines. We strive to respond to authors before their deadlines lapse; however, that isn’t always possible.

Expedite requests have a different effect depending on where the article is in the process. In the initial review stage, an offer from a comparable journal may induce the editor, at her discretion, to take a closer look at the piece or to speed up review. In the second stage, expedite requests may result in earlier scheduling for Full Committee Review.

4. For Jenna and Caroline, as an outgoing EIC and articles editor, what are some tips (or short-cuts) you gave to your incoming EIC and articles editors? (examples include, don't worry about the cover letters, they are a waste of time, don't consider nonprofessors, don't consider professors from schools in certain rankings)

We don’t provide any specific tips to committee members, as we want to allow each editor to formulate her own review process and opinions.

On the whole, the Vanderbilt Law Review considers all submissions other than those written by outside law students. That being said, we generally publish articles by law professors because those articles tend to be the most well-researched, well-supported, and well-written. The fact that the author is a professor further lends credibility to the piece because we know that professors are bound by institutional research norms, such as obtaining IRB approval when necessary.

While we do not consider the rank of the school at which a professor teaches, we do look at a professor’s past publication record (excluding her student note). That being said, the Vanderbilt Law Review is typically very receptive to emerging scholars; we take great pride in discovering new contributors to legal scholarship. We also encourage articles editors to review cover letters and abstracts, especially if these supplemental documents neatly summarize the article’s argument.

5. Did you find yourself looking more carefully at articles from professors at top 25 schools, versus other schools?

As mentioned above, while we don’t consider the school at which a professor teaches, we do take note of an author’s past publication history during our review process. Due to the weight that law school hiring committees place on publication, we find that impressive publication records are often correlated with faculty positions at highly ranked schools.

6. If you could give professors some advice on the submission process and how to improve the articles they write, what would it be?

We recognize that we are law students, and we do not profess to have any expertise in specific legal fields. But, we are well trained in logic, and thus coherent, well-written arguments with clear roadmaps certainly get our attention. The bottom line is: if we don’t understand it, we don’t publish it. Authors help themselves by highlighting each logical leap that they want the reader to make. Articles also seem to have grown in length lately. While our journal does not enforce a word limit, we are less willing to take on long pieces, especially when the reason for the length is unclear.

7. Did you find that you had an aversion to any type of article? Did you find that you had a balance of all topics in your books or did you find that you favored certain subjects more than others? What do you think of coauthored articles? Empirical pieces?

The Vanderbilt Law Review has an institutional interest in retaining its generalist reputation. This interest stems from our desire to continue to receive submissions from scholars in all legal fields. Thus, we consider the balance of articles in a particular volume during almost every committee meeting. Year to year, however, as committee interests change, some topic areas may have particularly fervent advocates. For example, last year’s committee had a strong affinity for patent law pieces. This changes every year and is one area where luck enters into the process. That being said, a strong article will be fairly considered regardless of the topic. If you are writing about a popular topic, however, you have to take a unique angle to differentiate your piece from the others.

Empirical pieces are often difficult for law students to evaluate. In recent years, however, the Vanderbilt Law Review has had someone from Vanderbilt’s new Ph.D. program in law and economics on the articles committee to provide some guidance. Even methodically sound empirical articles must contribute to legal scholarship; articles insufficiently grounded in law do not fare well.

While the number of authors on a particular piece plays no role in determining whether we make an offer, we do take notice where multiple authors’ expertise improves the piece.

8. At some stage, article fatigue hits and you are just overloaded with articles (which signals to us prawfs, that it is past the point when we should submit articles). When was this for you and when do you think the ideal time is to submit articles?

Our articles submission process has two cycles. The spring cycle, which opens in early February, fills the following issues: October, November, January, and March. The fall cycle, which opens in the middle of August, fills the April and May issues. Spring fatigue hits our committee by the first week of April. This is also approximately when we fill all of our spring slots. For this reason, we strongly encourage authors to submit to us by late February for the spring cycle. Alternatively, we encourage authors to submit as early as possible during the fall cycle, which tends to be less popular.

9. Did you find that your attitude about articles changed from the beginning of submissions to the end? For instance, did you first think that all of the articles would be the next big thing from Laurence Tribe and soon realize that those types of pieces were few and far between?

At the beginning of each committee’s tenure, most editors feel that selecting “the best” articles from thousands of submissions is near impossible. As time goes on, the task gets easier because the committee develops a sense of what constitutes good scholarship. That being said, committee members don’t always agree on the merits of a specific piece.

10. Anything you want to add that you think may be helpful to professors bewildered by this process?

We would simply like to reiterate that, in general, student editors work tirelessly to both select articles and edit them into their best possible form. While we do not purport to be legal experts, we are experienced readers and know how to think about the law—you taught us that. We agree that the process isn’t perfect. Perhaps if it was, we would all get a little more sleep. But, the system is what it is, and we are dealing with it as best we can. With that in mind, please know that kind and understanding words in cover letters, emails, and the blogosphere go a long way. You’d be surprised how often appreciative emails from authors are forwarded around to the staff—and how many people remember how great it was to work with those authors. On the margin, both good and bad interactions can make a difference.

Survey of Alabama Lawyers

Those readers who are interested in the legal economy will want to take a look at this study, by the Alabama bar, of Alabama lawyers in 2010, following up on two earlier surveys. It's not cheerful news. Here's a snippet from the executive summary:

When comparison is made to the surveys conducted by the bar in 1986 and 1998, it appears that, overall, individual lawyer income may be falling, particularly at the margins, with more lawyers reporting income of less than $50,000 than in 1998 and fewer lawyers reporting income of more than $100,000 than in 1998, while the percentage of lawyers reporting income of between $50,000 and $100,000 remained relatively even across all three surveys. The number of respondents in the less than $50,000 range increased from 24% in 1998 to 36.9% in 2010 (still under the 47% figure in 1986), while the number of respondents in the more than $100,000 range fell from a high of 40% set in the 1998 survey to 28% in 2010 (yet still more than the 17% figure in 1986). The number of respondents in the middle range of $50,000 to $100,000 remained fairly steady at 35.1% in the 2010 survey. . . .

Only time will tell whether these numbers showing decreasing lawyer income are a result of the recession and will improve by the time the next economic survey is done, or reflect the greater competition resulting from the increase in the number of lawyers in Alabama since 1986 and the trend toward commoditization of certain types of law practice and the lower income levels that often results from a commodity practice and increased competition.

Paul Campos has analysis here. I should add that I learned about the study simultaneously from a newspaper story and from my own students here at Alabama; clearly it didn't take long for word of the study to spread to them. One other thing noting is the size of the practices involved: "The largest single group was solo practitioners at 41.5% of respondents. Respondents from firms of 2 to 5 lawyers were next at 20.8%, reflecting the fact that about two-thirds of Alabama lawyers practice in firms of five lawyers or fewer." I was very pleased to learn this year about a new course at my law school on law office management, and hope that our school, other schools with similar practice profiles for graduates, and students themselves will give strong ongoing thought to how the law school curriculum should reflect these facts, both in terms of substantive courses and in terms of teaching fledgling lawyers best practices in terms of forming professional networks and exchanges and other ways of building relationships and safeguards into their practices.

Tuesday, April 17, 2012

“Breaking and Entering” Through Open Doors: Website Scripting Attacks and the Computer Fraud and Abuse Act, Part 2

Two notes: 1) Apologies to Prawfs readers for the delay in this post. It took my student and I longer than anticipated to complete some of the technical work behind this idea. 2) This post is a little longer than originally planned, because last week the Ninth Circuit en banc reversed a panel decision in United States v. Nosal which addressed whether the CFAA extends to violations of (terms of) use restrictions. In reversing the panel decision, the Ninth Circuit found the CFAA did *not* extend to such restrictions.

The idea for this post originally arose when I noticed I was able to include a hyperlink in a comment I made on a Prawfs' post. One of my students (Nick Carey) had just finished a paper discussing the applicability of the Computer Fraud and Abuse Act (CFAA) to certain types of cyberattacks that would exploit the ability to hyperlink blog comments, so I contacted Dan and offered to see if Prawfs was at risk, as it dovetailed nicely with a larger project I'm working on regarding regulating cybersecurity through criminal law.

The good news: it's actually hard to "hack" Prawfs. As best we can tell the obvious vulnerabilities are patched. It got me thinking, though, that as we start to clear away the low-hanging fruit in cybersecurity through regulatory action, focus is likely to shift to criminal investigations to address more sophisticated attackers.

Sophisticated attackers often use social engineering as a key part of their attacks. Social engineering vulnerabilities generally arise when there is a process in place to facilitate some legitimate activity, and when that process can be corrupted -- by manipulating the actors who use it -- to effect an outcome not predicted (and probably not desired). Most readers of this blog likely encounter such attacks on a regular basis, but have (hopefully!) been trained or learned how to recognize such attacks. One common example is the email, purportedly from a friend, business, or other contact, that invites you to click on a link. Once clicked on, this link in fact does not lead to the "exciting website" your friend advertised, but rather harvests the username and password for your email account and uses those for a variety of evil things.

I describe this example, which hopefully resonates with some readers (if not, be thankful for your great spam filters!), because it resembles the vulnerability we *did* find in Prawfs. This vulnerability, which perhaps is better called a design choice, highlights the tension in legal solutions to cybercrime I discuss here. Allowing commenters to hyperlink is a choice -- one that forms the basis for the "open doors" component of this question: should a user be held criminally liable under federal cybercrime law for using a website "feature" in a way other than that intended (or perhaps desired) by the operators of a website, but in a way that is otherwise not unlawful.

Prawfs uses TypePad, a well-known blogging software platform that handles (most) of the security work. And, in fact, it does quite a good job -- as mentioned above, most of the common vulnerabilities are closed off. The one we found remaining is quite interesting. It stems from the fact that commenters are permitted to use basic HTML (the "core" language in which web pages are written) in writing their comments. The danger in this approach is that it allows an attacker to include malicious "code" in their comments, such as the type of link described above. Since the setup of TypePad allows for commenters to provide their own name, it is also quite easy for an attacker to "pretend" to be someone else and use that person's "authority" to entice readers to click on the dangerous link. The final comment of Part 1 provides an example, here.

A simple solution -- one to which many security professionals rush -- is just to disable the ability to include HTML in comments. (Security professionals often tend to rush to disable entirely features that create risk.) Herein lies the problem: there is a very legitimate reason for allowing HTML in comments; it allows legitimate commenters to include clickable links to resources they cite. As we've seen in many other posts, this can be a very useful thing to do, particularly when citing opinions or other blog posts. Interestingly, as an aside, I've often found this tension curiously to resemble that found in debates about restricting speech on the basis of national security concerns. But that is a separate post.

Cybercrime clearly is a substantial problem. Tradeoffs like the one discussed here present one of the core reasons the problem cannot be solved through technology alone. Turning to law -- particularly regulating certain undesired behaviors through criminalization -- is a logical and perhaps necessary step in addressing cybersecurity problems. As I have begun to study this problem, however, I have reached the conclusion that legal solutions face a structurally similar set of tradeoffs as do technical solutions.

The CFAA is the primary federal law criminalizing certain cybercrime and "hacking" activities. The critical threshold in many CFAA cases is whether a user has "exceeded authorized access" (18 U.S.C. § 1030(a)) on a computer system. But who defines "authorized access?" Historically, this was done by a system administrator, who set rules and policies for how individuals could use computers within an organization. The usernames and passwords we all have at our respective academic institutions, and the resources those credentials allow us to access, are an example of this classic model.

What about a website like Prawfs? Most readers don't use a login and password to read or comment, but do for posting entries. Like most websites, there is a policy addressing (some of) the aspects of acceptable use. That policy, however can change at any time and without notice. (There are good reasons this is the case, the simplest being it is not practical to notify every person who ever visits the website of any change to the policy in advance of such changes taking effect.) What if a policy changes, however, in a way that makes an activity -- one previously allowed -- now impermissible? Under a broad interpretation of the CFAA, the user continuing to engage in the now impermissible activity would be exceeding their authorized access, and thereby possibly running afoul of the CFAA (specifically (a)(2)(C)).

Some courts have rejected this broad interpretation, perhaps most famously in United States v. Lori Drew, colloquially known as the "MySpace Mom" case. Other courts have accepted a broader view, as discussed by Michael Risch here and here. I find the Drew result correct, if frustrating, and the (original) Nosal result scary and incorrect. Last week, the Ninth Circuit en bancreversed itself and adopted a more Drew-like view of the CFAA. I am particularly relieved by the majority's understanding of the CFAA overbreadth problem:

The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer. This would make criminals of large groups of people who
would have little reason to suspect they are committing a federal crime. While ignorance of the law is no excuse, we can properly be skeptical as to whether Congress, in 1984, meant to criminalize conduct beyond that which is inherently wrongful, such as breaking into a computer.

I think the court recognizes here that an overbroad interpretation of the CFAA is similar to extending a breaking and entering statute to just walking in an open door. The Ninth Circuit appears to adopt similar thinking, noting that Congress' original intent was to address the issue of hackers breaking into computer systems, not innocent actors who either don't (can't?) understand the implications of their actions or don't intend to "hack" a system when they find the system allows them to access a file or use a certain function:

While the CFAA is susceptible to the government’s broad interpretation, we find Nosal’s narrower one more plausible. Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking, recognizing that, “[i]n
intentionally trespassing into someone else’s computer files, the offender obtains at the very least information as to how to break into that computer system.” S. Rep. No. 99-432, at 9 (1986) (Conf. Rep.).

(Nosal at 3863.)

Obviously the Ninth Circuit is far from the last word on this issue, and the dissent notes differences in how other Circuits have viewed the CFAA. I suspect at some point, unless Congress first acts, the Supreme Court will end up weighing in on the issue. Before that, I hope to produce some useful thoughts on the issue, and eagerly solicit feedback from Prawfs readers. I've constructed a couple of examples below to illustrate this in the context of the Blawg.

Consider, for example, a change in a blog's rules restricting what commenters may link to in their comments. Let's assume that, like Prawfs, currrently there are no specific posted restrictions. Let's say a blog decided it had a serious problem with spam (thankfully we don't here at Prawfs), and wanted to address this by adjusting the acceptable use policy for the blog to prohibit linking to any commercial product or service. We probably wouldn't feel much empathy for the unrelated spam advertisers who filled the comments with useless information about low-cost, prescriptionless, mail-order pharmaceuticals. We definitely wouldn't about the advance-fee fraud advertisers. But what about the practitioner who is an active participant in the blog, contributes to substantive discussions, and occassionally may want to reference or link to their practice in order to raise awareness?

Technically, all three categories of activity would violate (the broad interpretation of) (a)(2)(C). Note that the intent requirement -- or lack thereof -- in (a)(2)(C) is a key element of why these are treated similarly: the only "intent" required for violation is intent to access. (a)(2)(C) does not distinguish among actors' intent beyond this. As I have commented elsewhere (scroll down), one can easily construct scenarios under a "scary" reading of the CFAA where criminal law might be unable to distinguish between innocent actors lacking any reasonable element of what we traditionally consider mens rea, and malicious actors trying to takeover or bring down information systems. At the moment, I tend to think there's a more difficult problem discerning intent in the "gray area" examples I constructed here, particularly the Facebook examples when a username/password is involved. But I wonder what some of the criminal law folks think about whether intent really *is* harder, or if we could solve that problem with better statutory construction of the CFAA.

Finally, I've added one last comment to the original post (Part 1) that highlights both how easy it is to engage in such hacking (i.e., this isn't purely hypothetical) and how difficult it is to address the problem with technical solutions (i.e., those solutions would have meant none of this post -- or of my comments on the Facebook passwords post -- could have contained clickable links). I also hope it adds a little bit of "impact factor." The text of the comment explains how it works, and also provides an example of how it could be socially engineered.

In sum, the lack of clarity in the CFAA, and the resulting "criminalization overbreadth," is what concerns me -- and, thankfully, apparently the Ninth Circuit. In the process of examining whether Prawfs/TypePad had any common vulnerabilities, it occurred to me that in the rush to defend against legitimate cybercriminals, there may develop significant political pressure to over-criminalize other activities which are not proper for regulation through the criminal law. We have already seen this happen with child pornography laws and sexting. I am extremely interested in others' thoughts on this subject, and hope I have depicted the problem in a way digestible to non-technical readers!

We are all Empiricists Now, so Which Empiricists Should We Hire?

Evidently, we are all empiricists now. Except for me. But even I have a cool randomized field experiment in-progress with David Abrams, so I'll become an empiricist in no time, at least by some people's definition. Phase one: Collect data. Phase two: ???? Phase three: Profit.

Anyway, the Brian Leiter thread on empiricists, general frustration at identifying the right criteria for classifying empiricsts, and the subsequent comments ("My earlier post cataloguing School X's eight empirical legal scholars neglected to mention my dear friend and colleague, the multi-talented empiricist Slobotnik. Signed, mortified School X booster.") provide an opportunity to ask what sorts of empiricists should be hired in the legal academy. I recognize that the answer some people will provide is "none." I'm not addressing that crowd, though I am raising some issues that might be helpful to people who are skeptical about empiricist hiring in general on law faculties.

Here, then, are a few thoughts about how to hire entry-level quantitative empiricists with PhDs in disciplines like Political Science or Economics, as well as a coda about what many empiricists should be doing as the "field" matures. Hiring qualitative empiricists or experimentalists is a different ball of wax entirely, so I'm not really writing about those sorts of hiring decisions. My views are informed by having been a member of a law school's faculty appointments committee for most of the last decade (with trips to seven of the last ten AALS hiring conferences, for the quantitatively minded). They do not reflect the views of my institution. And my views don't match up perfectly with the way I have voted internally. I'll omit obvious advice like (a) hire smart people, and (b) fill curricular needs:

1. Ignore the findings. The legal academy probably focuses too much attention on the results of the empirical research project, particularly when hiring entry-level scholars. This is an empirically testable claim, but my impression is that entry level scholars with highly significant results do better on the market than candidates with marginally significant or null results. If this effect exists, it is largely pernicious. It rewards blind luck, it promotes the testing of questions that the empiricist already has strong intuitions about, it encourages entry-level scholars to write tons of papers (with less care) or run countless regressions until they find an interesting result, and it reinforces existing publication biases, which tend to publicize significant results and bury null results. Subject to the caveats below, we should not expect someone who achieved a highly significant result in paper A to be particularly likely to achieve a highly significant result in paper B . . . unless the scholar in question falsified data in paper A and wants to press her luck. But when you're doing entry level hiring, you really ought to care about papers B, C, and D. Which is why you should (almost) ignore paper A's findings.

2. Emphasize the methodology. Now the caveat to suggestion 1. Sometimes what's driving a highly significant result is a methodological breakthrough or the construction of a large new data set. These efforts or achievements should be rewarded. Someone who had a methodological breakthrough in paper A is plausibly more likely to have further breakthroughs in paper B. (Again, this is testable.) Someone who assembled a massive data set is likely displaying the work ethic and care that will serve them well in future projects. The same goes with framing a really interesting question, ideally one where either a null result or a highly significant result is revealing. Now, there are two major problems with emphasizing methodology. First, scholars genuinely making significant methodological breakthroughs are likely to go to Economics or Political Science departments so they can hang around with other researchers who are making methdological breakthroughs. Second, most law faculties don't have enough good empiricists to evaluate the empirical chops of a teched-up entry-level candidate. These faculties tend to lean heavily on references. And most references are relatively unreliable. (Except for me. And you!) The only things less reliable than references are outside letters and amicus briefs.

3. Hire candidates who intend to grab low-hanging fruit. There are important fields in legal scholarship where empirical scholarship has largely saturated the market. Setting aside extremely gifted candidates, these are areas where it is easy to pile up citations and hard to make much of an impact. I think that's become true of Corporate and Securities law, as well as judicial behavior, and the bar may be getting higher for quantitative empiricists writing in these areas. But there are other areas of law where great empirical scholarship is harder to come by: Civil Procedure, Comparative Public Law, Bankruptcy, and Health Law. Ok, you might have caught on to what I did there, having just mentioned the specializations of the last four JD/PhD empiricists hired by Chicago. Of course, these hires happen to be brilliant too; and that doesn't hurt. That's not to say we didn't try to hire a couple empiricists in fields where the low-hanging fruit has been picked. But the trend may be meaningful.

4. Hire empiricists who have really practiced law. This is a hedging strategy. A fair number of empiricists on the market have little evident interest in legal doctrine and seem poised to become middling or worse teachers and colleagues. An empiricist who has actually practiced law at a high level and seemed to have this practice experience inform her research agenda is a relatively good bet to add value to the institution even if the research winds up only being ok. My understanding is that at least one major law school that launched a JD/PhD program refused to let its JD/PhD candidates participate in on-campus interviewing or otherwise utilize the Career Services office to pursue non-academic jobs . . . [Shakes head].

5. What will we do with all of these empiricists? Some empiricists have become or will become superstar researchers. Most will not. An interesting question going forward is what the latter group should do with their time. I would hope that non-superstar empirical scholars increasingly turn their attention to replicating highly significant work by others upon which policymakers have relied. If my hunch about results-driven hiring is correct, then the temptation of entry-level scholars to falsify data is strong. I worry that some scholars will give in to temptation. A good faculty workshop can catch all kinds of errors in the data. Many good questions are asked about robustness. But such a workshop will be unlikely to unmask intentional falsehoods in the underlying data - that typically takes a lot of time and attention. I suspect that the legal academy is presently at a point where trying to replicate famous empirical results - using new data sets ideally - may represent some of the most socially useful low-hanging fruit, especially in fields that are heavily populated by empiricists.

Such replication is usually not methodologically innovative, so it probably isn't the wisest work for most entry-level scholars to do, given the obsession most faculties have with "high upside" hires. But for established empirical scholars who have largely reached their ceilings, a renewed emphasis on replication would be most welcome. This is an alternative to the "teaching colleges" approach discussed elsewhere. It is probably not wise to ask average-ish tenured JD / PhDs to give up research and focus exclusively on teaching. But it is perhaps more appropriate to ask that they try to maximize the social value of their research, and keeping the profession honest through replication may be the best way to accomplish that end.

Update:

Jon Klick offered the following additional thoughts, with which I largely agree:

Ideally, you do want someone who knows the difference between a true null/zero and a statistically imprecise result. Further, to some extent, statistical precision will be endogenous to research design. All other things equal, a better design (or using more appropriate data) is more likely to lead to either identifying a true zero or else a statistically significant result. This suggests that there is some information content about the candidate’s skills included in the finding of a statistically significant result. As for zero/insignificant results, assuming the candidate can speak thoughtfully about whether it is a true zero vs a limitation in the research design and/or inherently noisy data, I agree that we shouldn’t downgrade a candidate on that basis.

There’s another important sense where the results matter. Econometric work (really any statistical work) is as much art as science, so there are times when you do everything right and you come up with some crazy result that is almost certainly wrong. Unsophisticated/immature empirical researchers often present results like these and come up with some post hoc rationalization. This is a very bad sign. A sophisticated/talented empirical researcher knows to either re-think his design or to abandon the research and move onto something else in these cases.

I do worry about the problem of "crazy" results being abandoned and never seeing the light of day. As a Bayesian, I want to know about crazy results, null results, and every other kind of result. I certainly feel that a good empirical scholar ought to caveat the heck out of those crazy results and other scholars citing that work need to understand those caveats to contextualize the results.

Monday, April 16, 2012

Entry Level Hiring Report - More Info, Please!

We are way short on reports for the Entry Level Hiring Report. We should end up with about 150 reports, give or take, and we fewer than 100 right now. By this time, hiring should basically be done.

So, a plea: please send in your information, or tell people you know to send in their information. You can post it in the comments to the hiring report thread, or email me directly, slawsky *at* law *dot* uci *dot* edu.

I will feel extremely uncomfortable compiling the data if we don't get around 150 people--given that even the usual list of 150 or 160 omits many people, analyzing and compiling a mere 100 reports strikes me as even more irresponsible than usual. (I think the problem is that we started collecting the information too early--I won't make the same mistake next year.)

Does Criticizing "Invented Traditions" Have a Political Orientation?

In a recent Balkinization post, Mary Dudziak rightly praises a new article by Cary Franklin, "Inventing the 'Traditional Concept' of Sex Discrimination." Franklin's article argues that "the 'traditional concept' of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. . . . The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles." Dudziak praises Franklin for "bringing a critical understanding of tradition to bear on Title VII," writing:

Bringing this classic analysis to bear on contemporary legal analysis has potential importance beyond Title VII. History as a "useable past" is often drawn on by scholars, courts and litigants (in the plethora of historical amicus briefs). For the past to be authoritative, there is a search for the "real," based on the idea that there is one true past that can be discovered. This fuels instrumental historical research that seems to assume that uncovering history involves mining the past to collect as many seemly stable objects as possible (whether they be past laws, interpretations, ideas, or experiences). A central feature of any critical work in historiography emphasizes the instability of the past, and the fact that we cannot know the past without interpretation. And Hobsbawm cautions us that constructions of tradition often serve the function of legitimating current structures and social hierarchies.

I like the article and the post, and am all in favor of critical examinations of received wisdom about history and tradition. I write only to add the point--an obvious one, perhaps, but less often discussed and possibly subject to some mistaken contrary views--that such enterprises are a good idea for any legal scholarship and neither require nor imply a particular political or normative viewpoint.

Franklin argues that "history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate 'because of sex.'" But critical examinations of tradition needn't point in a particular direction. Their value, as I see it, lies not in the possibility they open up to progressive legal interpretation, but in their capacity to unsettle pat assumptions about history and tradition, of whatever political valence. Lawyers of all political stripes tend to draw on canned versions of history and tradition, often drawn from judicial opinions, which seem like a reasonable place to find "useable pasts" but a terrible place to look for full and nuanced history. There are plenty of standard stories about history and tradition that serve liberal or progressive ends, just as there are many standard stories that serve conservative ends. There are countless examples in legal scholarship of what we might call "one-footnote history"--a pat statement about living constitutionalism, or the expansive intent of the Framers, or the wall of separation, or what have you, backed up by a single slender footnote citing to some general, overbroad, overly confident version of history or tradition.

This should be no surprise; as Dudziak writes, this is more or less how lawyers "do" history most of the time. Reexamining these casual assumptions about history and tradition is always in order, if only because it tends to bring home to us just how little an appeal to canned history as "authority" gets us and just how much is left in our own hands at the end of the day. But certainly no one (and I am not saying either Franklin or Dudziak do) should make the mistake of thinking that reexamining tradition or history will lead inexorably to "progressive" legal outcomes. It may lead us to clearer or different modes of thinking, but it won't lead to any predictable results. Lazy assumptions about history or tradition are not the sole province of any particular political viewpoint.

I could imagine a response arguing that reexamining tradition is more likely to lead to the unsettling of conservative judicial or scholarly views than of liberal ones, because conservatives appeal more often to history and tradition. I think it quite possible that there could be some disproportionate effect. (Some) conservatives appeal more often to history or tradition as authoritative sources of interpretation, and (many) progressive legal thinkers are more openly concerned with future directions and less with history. But I don't think such an argument would be completely successful. For one thing, as I said, I think there are plenty of liberal shibboleths that draw on canned history and tradition. More important is the simple fact that unsettling such assumptions doesn't tell us where to go next. It may tell us, for instance, that history doesn't "compel" us to adopt anticlassificationist views of sex discrimination law--although in any event I don't think history ever "compels" us to do anything--but it doesn't tell us whether we ought to adopt anticlassificationist views anyway. Eliminating "bad" history or "invented" traditions just brings us where we always are: left to our own devices and confronted with our own decisions.

I would be happy to see much more critical history of this kind. Indeed, I'm working on a paper along these lines myself, having to do with political geography and church-state law. I just hope no one will assume this is an inherently liberal or progressive project. Reexamining and deconstructing history and tradition is, I'm glad to say, an equal opportunity activity, with enough fat targets to make everyone unhapy.

Saturday, April 14, 2012

Underneath the Law Review Submission Process: Part IV Interviews with Those who Reject Us

For my next post on the law review submission process (see intro, part I, part II on timing of submissions and part III interview if you are interested), is the second half of my interview with Senior Articles Editor at the Stanford Law Review, Andrew Prout. The first half of his interview is here.

SB: So, now some nitty-gritty questions:

What do you think of the relative importance of the cover letter and CV in reviewing a manuscript? And what kinds of things really stick out to you as important when reviewing these two documents?

AP: I used those documents to triage expedite requests. If we had three articles to be reviewed within a few hours, I would look to the cover letter for the article's importance. Some authors did a good job selling their pieces, and then I would make sure to give those articles priority. Others didn't, so they would be reviewed later.

If I saw an author who I knew (or who had especially great credentials), I would give their submission a closer look, but I never told the editors who the author was. Like I said, this process was just how I ordered our approach to expedites when there wasn't time for me to preview all the pieces first.

SB: Some of us law faculty can be pretty superstitious about the timing of the law review submission process. There are certain professors who swear by the importance of submitting on certain dates every year. I've heard of February 1. February 10. Last day in February. March 13. And so on. There is something to these theories. Some professors believe that if you send your paper earlier in February, it is more likely to get a good read since the editors are less tired and that these articles are more likely to get offers than the later ones you receive that come in the deluge at the beginning of March. Others believe that editors are much to selective at the beginning of February and are only willing to consider pieces from legal geniuses like Erwin Chemerinsky and only later do you realize that those blockbuster pieces are not coming and you are willing to consider pieces from others who are mere mortals. Any truth behind any of this superstition? And is there any time that is truly a bad time to submit (in Spring or Fall)?

AP: We accepted a lot in February, but I think we just received better pieces then. We're on the quarter system at Stanford, so our cycle will be different than others.

The problem with February is that it is so busy, it is easy for a piece to get overlooked--or taken somewhere else by a fast-expiring offer. Exclusive submissions helped, but another approach is to submit off-cycle (but still during our academic year). So April was a good time for us: not many to review, still far from final exams, so more time for each submission. October was similar, though we were accepting our last few at that point.

SB: Lets talk about Expedites. These are a source of serious stress for professors. We receive an offer, we often do not know which journals we should expedite to. If we get an offer from a lower-top-50 school, do we expedite all the way to the top (ie to Stanford)? Do we expedite incrementally so that you only see our expedites from top-20 schools? When you see expedites, which ones make you more likely to consider the piece? Do you ever move a paper to final board review that does not come from an expedited review from another journal?

AP: For expedites, the journal matters. When I see a top-25 expedite, my interest is automatically piqued. That said, we did review a number of pieces at the full committee level without any expedite request (though that was mostly during the off-months). But during the on-months--February, March, and September--we often received expedite requests within a day or two of the initial submission. Under those circumstances, it was very difficult to move any article through our full review process that wasn't expedited.

SB: In receiving expedites, do you consider the volume of offers, even if they are from lower ranked schools? What if someone has received 15 offers from schools between the top 30 and top 50, would this be something that would make you more likely to consider the piece?

AP: Not really. Those updates were helpful only insofar as they meant more time for our review process (i.e., they were extensions).

SB: And I know this question is completely going to require a subjective response, but are there certain journals that you believe have a good nose for sniffing good pieces, and if so, which journals are they?

AP: It really varies by the year. I remember a lot of action around U. Pa. L. Rev. and Cornell L. Rev. expedites during last spring. This year, my successor tells me he has looked at a lot of Mich. L. Rev. expedites. I think it comes down to individual taste and timing.

SB: Thanks Andrew! This is fun.

AP: Thank you, Shima! I hope this was helpful. Reviewing all those articles was a lot of work, but it was also a lot of fun (and we learn a bunch to boot).

Next up...interview with editor-in-chief and two articles editors from the Vanderbilt Law Review...

Friday, April 13, 2012

Roadmap to the Roadmap

In light of Paul's post below, I thought I'd share a paragraph that I strategically place somewhere near the end of the introduction [sorry, Introduction], and which I call roadmap to the roadmap.

In this section of the Introduction, I aim to explain the paper's meta-structure. Parts II and III are called 'exposition.' Here, the paper exposes to its audience the material which I have read and thought about in composing this article. In order to allay fears that I am insufficiently well-read in an area as to which I am claiming expertise, the reader should expect these sections to include an impressive literature review. I also include sub-parts within these parts. These sub-parts are suggestions of categories of exposition which deserve discussion qua categories. I have affixed titles to the parts and subparts in order succinctly to indicate the subject of the category (or subcategory). Without the titles (and subtitles), I fear no one will understand, or be bothered to read, the content. What follows in Parts IV and V is "argument." To the extent that this article says something valuable, the conventional wisdom is that it will appear here. That is because in the "argument" sections, one generally takes oneself to say something original to the piece, and originality is the most important part of scholarship. For the sake of my readers' expectations, I aim to offer something -- anything -- original in these sections. As before, there will be sub-parts (with subtitles) to suggest the complexity and true originality of the argument. I then end with a conclusion. The conclusion generally says nothing that was not said before. That is why I simply mention it in the roadmap to the roadmap, rather than describing what I say in it, as I do not wish the reader to be surprised by the appearance of a "Conclusion" which was not previously announced.

The only disadvantage of my roadmap to the roadmap is that it leaves that part of the introduction which precedes it completely unmapped, and therefore liable to confuse and distress.

Thursday, April 12, 2012

The Roadmap

It's a casual post, but I very much enjoyed and happily recommend Mark Tushnet's post today speculating about why his article on art and the First Amendment didn't place as he might (reasonably) have expected it to. I especially like this portion of the post:

3. I hate “roadmap” paragraphs, and don’t write them on my own. My particular bête noire is this: “Part VI concludes,” which is to say, “The Conclusion concludes.” [What else do you expect a conclusion to do?] The article as published has one, because I will go along with editors’ requests. But, maybe the editors figured that the judgment reflected in the absence of a roadmap paragraph would translate into recalcitrance during the editing stages, and again, why borrow trouble? (Note to law review editors reading this: It doesn’t; I’m really easy to edit.)

4. The article doesn’t have a strong normative conclusion. It doesn’t say that the Supreme Court has completely messed up in its treatment of art and the First Amendment. And, indeed, it says that the Court may have gotten it basically right, though the reasons are more complicated than people tend to assume. So, the reaction might be, “Why bother to go through all this to say that the law is basically in the right place anyway?” – particularly on a question that nobody seems to have raised anyway. (That is, maybe you can publish an article saying that the Court’s basically right when someone else has written one saying that the Court’s messed things up, but without the predicate article no one’s going to care that you’ve “defended” the Court’s results.)

Nicely written. Although I agree with both paragraphs, I'm moved to comment on the first.

I almost always use roadmap paragraphs. In reflecting on Mark's post, though, I must say there is an argument to be made that roadmap paragraphs are a fairly nice illustration of some of the most risible aspects of legal scholarship. Clarity in writing, scholarly or otherwise, is of course essential. But a paper that lacks clarity in general isn't going to find it because of the insertion of a roadmap paragraph. (I wince as I write those words.) That's like a surgeon trying to fix massive spinal injuries by inserting a safety pin and a wad of chewing gum into the patient.

If legal scholarship was written to aid and persuade judges, perhaps a roadmap paragraph would be a wise strategy. But: 1) every time some judge sneers at legal scholarship for being unhelpful to judges, many legal scholars respond that they're engaged in scholarship for broader purposes, not simply to serve as advocates or secondhand law clerks; and 2) in any case, if your paper is long and complex enough that it needs a roadmap paragraph, you have probably already failed at the task of aiding or persuading judges, or indeed just about anyone else outside the legal academy.

Which leaves those inside the legal academy. But if the experts in your field need a roadmap paragraph from you, there is already a good chance that 1) your paper needs to be rewritten anyway, or 2) there is something wrong with the experts in your field.

That leaves us with what I suspect most legal scholars would agree is the number one reason why they use roadmap paragraphs: because they think that law review editors need and/or expect them. Except that law review editors now also commonly expect, and regularly publish, abstracts -- which summarize the paper! (And which also appear on SSRN, even when they don't appear in the print version.) So the roadmap paragraph is really quite useless. Unless your article itself is overly long and complex. Which, come to think of it, most legal scholars would probably agree is the number two reason for the prevalence of roadmap paragraphs in legal scholarship.

Ethics and Tourism

In just a few weeks, I’ll be heading off on a big trip that will include two weeks in Vietnam and Cambodia. Of course, as a prawf, I’m incapable of simply planning an enjoying a trip to new and exciting places. Instead, I find myself fretting over the various ethical considerations involved in visiting developing nations. More on this after the jump.

I trace much of my uneasiness to a trip I took to Bosnia in 2006. I went to Sarajevo that year to visit a Bosnian woman I had befriended while studying in Germany. I had always wanted to visit the former Yugoslavia, and having a local friend to host me seemed like a perfect opportunity.

Of course, as an American, almost all of what I knew about Bosnia had to do with the recent wars, with a little bit of Marshal Tito and the assassination of Archduke Ferdinand thrown in. Nevertheless, I was determined to show my friend and her family and peers that I was interested in Bosnia for its own sake, and that I had not come to voyeuristically experience a recent war zone or to gawk at poverty. I was acutely aware of the fact that men and women who were my peers had lived through an unimaginably horrific war. I recall being deeply ashamed when my friend’s sister asked what it was like to be in New York on 9/11, as if my story of temporary displacement could ever compare to what it must have been like to be a teenager in 1990s Sarajevo.

With that uneasiness in mind, I set out with my camera and my journal to document a country that could have been captioned “Bosnia: Not a Warzone!” I snapped pictures of the gorgeous mountains, of the charming Turkish quarter and the stately Austrian quarter in Sarajevo, of the new bridge and beautiful hillside houses in Mostar, and of the almost comical “ruins” of an ancient “pyramid” of dubious provenance. I chronicled my adventures eating cevapi on the most delicious fresh bread I have ever tasted, and enjoying an afternoon coffee in a perfectly landscaped Sarajevo square.

But there were many things that I took fewer pictures of, namely, the bombed out buildings, large cemeteries with too many recent graves, the countless- street-side memorials to urban terrorist attacks, and the appalling interior condition of even “luxury” high-rise apartment buildings. I came back brimming with stories about the warmth and hospitality of the people I met, but was much less forthcoming about some of the daily hardships that I saw them face.

In the years since I visited Bosnia, I have travelled to several other developing countries, each time with an uneasy sense that the poverty and suffering of others is not there for my entertainment or “cultural experience,” but that ignoring this aspect of life would be to leave without a complete sense of the land I have visited.

So, on this trip, I hope to achieve as much balance as possible. Will I see the Vietnam of napalm, of My Lai, and the Cu-Chi tunnels? Or the Vietnam of a rich history that is so much more than colonial occupation and resistance. Will I allow myself to see the Cambodia killing fields, or confine myself to the tourist haven of Angkor Wat? Will I marvel at economic revival in Vietnam or allow myself to confront the reality of continued poverty in developing nations?

Tell me, Prawfs readers: which trip is most respectful to myself and to the nations I am visiting? Is there any way to experience the reality of war or poverty without being exploitative, condescending, or voyeuristic?

The Selection of Charges in the Zimmerman case

I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman. Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.

But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight.

P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...

Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research. That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc, conclude that kind of mens rea brd. By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply. 782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.Moreover, the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence): Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

One more thing: Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there?

Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood.

Wednesday, April 11, 2012

Oops, happy belated birthday, Volokhers!

I noted the other day that our own 7th birthday was this past week (unleavened cupcakes?!), but I just noticed Eugene's reference to his blog's 10th birthday. So from all of us who are grateful that the Volokh Conspiracy exists (at least for purposes of foiling!), we say Congrazel tov on this big day. Just 3 more years until you get a pen set and 180 shekels payable five or 18 years later...

And for those of you keeping score at home, we lag substantially behind TVC in terms of legal citations. 237 in TP-all and only one judicial citation (but it's a hell of a citation :-). That we have roughly 1/3 of the TP-ALL citations is not dispiriting in the slightest: TVC regularly has ten times our readership. Thanks to you all, though, we are assured that we have the right kind of readers! :-)